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Roosevelt GREEN Jr.

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Robbery - Kidnapping - Rape
Number of victims: 1
Date of murder: December 12, 1976
Date of birth: 1956
Victim profile: Teresa Carol Allen, 18 (store clerk)
Method of murder: Shooting
Location: Bleckley County, Georgia, USA
Status: Executed by electrocution in Georgia on January 9, 1985
 
 
 
 
 
 

Roosevelt Green

Georgia - Jan 9, 1985

At approximately 3 p.m. on December 12, 1976, 18-year-old Teresa Carol Allen arrived at her place of part-time employment, the Majik Market in Cochran, Georgia.

Shortly before 7 p.m. the store was found to be empty. The cash register and the safe were open and empty and Miss Allen's automobile, a late model Pontiac Grand Prix, was missing. The Majik Market area supervisor determined that $466 was missing from the store.

On December 14, 1976, Miss Allen's body was discovered lying in a wooded grassy area just off a dirt  road near Highway 41 in Monroe County, Georgia. Footprints, two 30.06 cartridge hulls, a 30.06 metal jacket of a bullet, parts of Miss Allen's flesh, teeth and bone, tire tracks and a nylon stocking were found near the body.

The cause of her death was determined to be loss of blood from bullet wounds. Examination of the body disclosed bruising on the inside of one thigh, a laceration of the vagina, and blood and mucous like matter in the vaginal canal.

A pathologist testified that the wounds in the abdomen, arms and face were caused by a high-powered missile, and that the location and nature of the wounds were consistent with the theory that Miss Allen had her arms crossed across her stomach and was shot with a high-powered bullet which passed through both arms and the abdomen. Miss Allen was also shot by a high-powered bullet entering the left side of the neck, penetrating the lower face and exiting the right side of the head.

In the early evening of the day of the robbery, Carzell Moore and Roosevelt Green were let off at Moore's house. Moore's house was four blocks from the location of the Majik Market. Green was wearing high-heeled shoes.

In early January, 1977, Thomas Pasby accompanied Moore to check out an automobile that Moore intended to purchase. At that time, the Moore asked Pasby how Pasby felt about killing when Pasby was in Viet Nam.

During their discussion, Moore told Pasby, "Well, I killed somebody, too," and then related the following: Moore said that he and Green went to the Majik Market in Cochran. Moore told Green to go in and take Miss Allen to the meat counter in order to attract her attention so that Moore could come in the front of the store with a rifle. This was done, and Green and Moore robbed the Majik Market. When they left the store, they took Miss Allen with them forcibly.

They left in her car with Moore driving. Shortly after leaving the store Green turned to Miss Allen and said, "Bitch, take off your clothes." Miss Allen told Green that she was a virgin and pleaded with him not to rape her. Green raped her anyway. Green then changed places with Moore, and Green drove. Carzell Moore then raped Miss Allen.

After driving further, Moore told Green to stop the car. Moore then told Miss Allen to get out. Miss Allen and Moore then got out of the car. Moore told Green to drive to a gas station to get gas for the car. After Green left, Miss Allen begged Moore not to kill her.

Miss Allen crossed her arms over her stomach to protect herself. Moore shot her in the abdomen with the rifle. He then shot her in the face. Moore stated that he shot Miss Allen in the face in an attempt to disfigure her so as to make it difficult to identify her.

When Green returned, the two of them picked up Miss Allen and threw her into the bushes. Moore told Pasby that one of her hands was so mangled by the rifle blast that he thought it was going to fall off. One of Miss Allen's hands was almost severed from her body.

The attendant at a nearby gas station recalled selling gas for an automobile like that of the victim with a Georgia county tag that showed only the letters RENS from Laurens. The tag on the victim's car was in a similar condition.

Green later arrived in South Carolina in possession of the car with a large amount of change and a roll of bills, asked a friend to burn the car for him (which request the friend refused), and traded the 30.06 rifle for a .25 caliber automatic. A Cochran florist testified the rifle was stolen from him about the time and in the vicinity Moore was seen with it.

When Moore was informed while in jail that Green had been arrested with the Allen car in South Carolina he stated, "Damn, I told Green to get rid of that car and that rifle." Later, Moore stated to Pasby again, "You know, Green was supposed to have gotten rid of that rifle and the car."

A plaster cast of a footprint found near Miss Allen's body was of similar size and impression as a flat Hushpuppy shoe taken from Moore's room. Tire tracks found near her body were similar in size and tread design to the tires found on Miss Allen's car. There was other forensic evidence that circumstantially connected Moore to the crimes.

Moore testified in his own behalf that he met Green in an Alabama prison in 1975. On December 11, 1976, he saw Green in Cochran looking for him. Green, out on escape, was using the name Jerome Miller. Moore loaned Green some of his clothes and shoes.

They went to various places on December 11, and on the day of the robbery, they went to Rosa Crawford's house to watch the  football game. Rosa's parents drove Moore and Green to Moore's house, where Green borrowed the Hushpuppy shoes from Moore. Green left and Moore began drinking, watched Sonny and Cher, and then became nauseated and passed out. He awoke late that night, and went outside. The cafe was closed so he just sat under a tree and smoked. A friend came along and they smoked together. Then he went home and went to sleep.

He denied making the statement to Pasby about robbing the Majik Market, raping Teresa Allen, and killing her. He denied getting a 30.06 rifle. He denied Johnson's testimony concerning Moore's asking about a place to rob. He denied Johnson's testimony concerning his statements about the rifle.

He denied that he made the statement to Pasby while in jail. Moore explained the forensic evidence by stating that he had skinned himself while having intercourse with his girl friend. He also testified that Green exchanged his high platform shoes for appellant's Hushpuppys prior to the evening of the robbery.

In rebuttal, the state presented testimony that when Green visited in South Carolina the morning following the robbery he was wearing high-heeled shoes and not Hushpuppys. 

 
 

U.S. Supreme Court

Green v. Georgia, 442 U.S. 95 (1979)

Green v. Georgia

No. 78-5944

Decided May 29, 1979

442 U.S. 95

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

Syllabus

Petitioner, who was indicted with one Moore for rape and murder, was tried separately in a Georgia state court. After the jury determined that petitioner was guilty of murder, a second proceeding was held to decide whether capital punishment would be imposed, and petitioner attempted to introduce the testimony of a third person, who had testified for the State at Moore's earlier trial (wherein Moore was convicted of both crimes and sentenced to death), to the effect that Moore had confided to the witness that Moore had killed the victim, shooting her twice after ordering petitioner to run an errand. The trial court refused to admit the testimony, ruling that it constituted inadmissible hearsay under Georgia law. The petitioner was sentenced to death, and the Georgia Supreme Court upheld the conviction and sentence.

Held: Regardless of whether the proffered testimony comes within Georgia's hearsay rule, under the facts of this case, its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment, denying petitioner a fair trial on the issue of punishment, and thus requiring that the sentence be vacated. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore and to base a death sentence upon it.

Certiorari granted; 242 Ga. 261, 249 S.E.2d 1, reversed and remanded.

PER CURIAM.

Petitioner and Carzell Moore were indicted together for the rape and murder of Teresa Carol Allen. Moore was tried separately, was convicted of both crimes, and has been sentenced to death. See Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903 (1978). Petitioner subsequently was convicted of murder, and also received a capital sentence. The Supreme Court of Georgia upheld the conviction and sentence, 242 Ga. 261, 249 S.E.2d 1 (1978), and petitioner has sought review of so much of the judgment as affirmed the capital sentence. We grant the motion for leave to proceed in forma pauperis and the petition for certiorari, and vacate the sentence.

The evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her. After the jury determined that petitioner was guilty of murder, a second trial was held to decide whether capital punishment would be imposed. See Ga.Code 272503 (1978). At this second proceeding, petitioner sought to prove he was not present when Allen was killed and had not participated in her death. He attempted to introduce the testimony of Thomas Pasby, who had testified for the State at Moore's trial. According to Pasby, Moore had confided to him that he had killed Allen, shooting her twice after ordering petitioner to run an errand. The trial court refused to allow introduction of this evidence, ruling that Pasby's testimony constituted hearsay that was inadmissible under Ga.Code 38-301 (1978). [Footnote 1] The State then argued to the jury that, in the absence of direct evidence as to the circumstances of the crime, it could infer that petitioner participated directly in Allen's murder from the fact that more than one bullet was fired into her body. [Footnote 2]

Regardless of whether the proffered testimony comes within Georgia's hearsay rule, under the facts of this case, its exclusion constituted a violation of the Due Process clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett v. Ohio, 438 U. S. 586, 438 U. S. 604-605 (1978) (plurality opinion); id. at 438 U. S. 613-616 (opinion of BLACKMUN, J.), and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it. [Footnote 3] In these unique circumstances, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U. S. 284, 410 U. S. 302 (1973). [Footnote 4] Because the exclusion of Pasby's testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, adhering to their view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 428 U. S. 227, 231 (1976), would vacate the death sentence without remanding for further proceedings.

*****

[Footnote 1]

Georgia recognizes an exception to the hearsay rule for declarations against pecuniary interest, but not for declarations against penal interest. See 242 Ga. 261, 269-272, 249 S.E.2d 1, 8-9 (1978), quoting Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).

[Footnote 2]

The District Attorney stated to the jury:

"We couldn't possibly bring any evidence other than the circumstantial evidence and the direct evidence that we had pointing to who did it, and I think it's especially significant for you to remember what Dr. Dawson said in this case. When the first shot, in his medical opinion, he stated that Miss Allen had positive blood pressure when both shots were fired, but I don't know whether Carzell Moore fired the first shot and handed the gun to Roosevelt Green and he fired the second shot or whether it was vice versa or whether Roosevelt Green had the gun and fired the shot or Carzell Moore had the gun and fired the first shot or the second, but I think it can be reasonably stated that you Ladies and Gentlemen can believe that each one of them fired the shots so that they would be as equally involved and one did not exceed the other's part in the commission of this crime."

Pet. for Cert. 10.

[Footnote 3]

A confession to a crime is not considered hearsay under Georgia law when admitted against a declarant. Ga.Code 38-414 (1978); Green v. state, 115 Ga.App. 685, 155 S.E.2d 655 (1967).

[Footnote 4]

See Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 592-593 (1978).

*****

MR. JUSTICE REHNQUIST, dissenting.

The Court today takes another step toward embalming the law of evidence in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. I think it impossible to find any justification in the Constitution for today's ruling, and take comfort only from the fact that, since this is a capital case, it is perhaps an example of the maxim that "hard cases make bad law."

The Georgia trial court refused to allow in evidence certain testimony at petitioner's sentencing trial on the ground that it constituted inadmissible hearsay under Ga.Code 38-301 (1978). This Court does not, and could not, dispute the propriety of that ruling. Instead, it marshals a number of ad hoc reasons why Georgia should adopt a code of evidence that would allow this particular testimony to be admitted, and concludes that "[i]n these unique circumstances, the hearsay rule may not be applied mechanistically to defeat the ends of justice.'" Ante at 442 U. S. 97.

Nothing in the United States Constitution gives this Court any authority to supersede a State's code of evidence because its application in a particular situation would defeat what this Court conceives to be "the ends of justice." The Court does not disagree that the testimony at issue is hearsay or that it fails to come within any of the exceptions to the hearsay rule provided by Georgia's rules of evidence. The Court obviously is troubled by the fact that the same testimony was admissible at the separate trial of petitioner's codefendant at the behest of the State. But this fact by no means demonstrates that the Georgia courts have not evenhandedly applied their code of evidence, with its various hearsay exceptions, so as to deny petitioner a fair trial. No practicing lawyer can have failed to note that Georgia's evidentiary rules, like those of every other State and of the United States, are such that certain items of evidence may be introduced by one party, but not by another. This is a fact of trial life, embodied throughout the hearsay rule and its exceptions. This being the case, the United States Constitution must be strained to or beyond the breaking point to conclude that all capital defendants who are unable to introduce all of the evidence which they seek to admit are denied a fair trial. I therefore dissent from the vacation of petitioner's sentence.

 
 

715 F.2d 551

Roosevelt Green, Jr., Petitioner-appellant,
v.
Walter D. Zant, Respondent-appellee

United States Court of Appeals, Eleventh Circuit.

Sept. 19, 1983

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

VANCE, Circuit Judge:

Roosevelt Green, Jr. was convicted of murder and sentenced to death for his part in the kidnapping and murder of Teresa Allen, an eighteen year old student who was abducted from her job as a part time cashier at a Majik Market convenience store in Cochran, Georgia, on December 12, 1976. The Supreme Court of Georgia affirmed the conviction. Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978). The United States Supreme Court granted certiorari, vacated petitioner's death sentence and remanded for further proceedings. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). The Georgia Supreme Court remanded the case to the trial court with directions to retry the sentencing portion of the trial. Green v. State, 244 Ga. 27, 257 S.E.2d 543 (1979).

Retrial resulted in reimposition of the death sentence. The Supreme Court of Georgia affirmed. Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980). The United States Supreme Court denied certiorari. Green v. Georgia, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 372 (1981).

Petitioner filed for a writ of habeas corpus in the Superior Court of Butts County on June 11, 1981, which was dismissed by the court in an order also dated June 11. On June 12, the Georgia Supreme Court granted a stay of execution pending disposition of an application for certificate of probable cause, and subsequently remanded for an evidentiary hearing. Following the hearing, the Superior Court dismissed the petition and denied relief. The Georgia Supreme Court denied an application for a certificate of probable cause and the United States Supreme Court denied certiorari. Green v. Zant, 455 U.S. 983, 102 S.Ct. 1493, 71 L.Ed.2d 693 (1982).

Green filed the present petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia and thereafter filed a motion for an evidentiary hearing. The district court denied both the motion and petition and Green appeals to this court.

Green raises ten issues before this court: whether the trial court's discharge of one juror during deliberations on petitioner's resentencing without investigation violated petitioner's sixth, eighth and fourteenth amendment rights; whether Green's death sentence violates the proscription of Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) against imposition of capital punishment upon one who himself neither took life, intended to take life, nor attempted to take life; whether non statutory aggravating circumstances were improperly admitted during Green's resentencing proceeding; whether submission during Green's resentencing trial of evidence relevant to statutory aggravating circumstances which had been previously adjudicated in his favor violated his fifth amendment right to be free of double jeopardy; whether the state improperly prevented Green from introducing evidence in mitigation; whether jurors were excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); whether introduction into evidence of portions of the victim's corpse during the resentencing proceeding so infected Green's trial with passion and prejudice as to violate his rights under the eighth and fourteenth amendments; whether the trial court improperly commented on Green's failure to testify; whether the trial court erred in refusing to instruct the sentencing jury that Green was presumed innocent of aggravating circumstances; whether Green was denied the effective assistance of counsel. Because the record is inadequate to support resolution of the first issue, we remand for an evidentiary hearing on that issue and express no opinion as to the remaining issues. This panel will retain jurisdiction over the case. We instruct the district court to certify its findings and the record of its proceedings to us within ninety days of issuance of this opinion. Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983); Spivey v. Zant, 661 F.2d 464, 478 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982).

The record reveals the following undisputed facts. Approximately three hours after they began their sentencing deliberations, the jury returned to the courtroom and the foreperson asked the judge "can a sentence be given, 'life in prison without parole?' " The court responded that it could not answer the question. After another brief question and answer, the jury began to withdraw to resume its deliberations.

At this point, one of the jurors, Dorothy Mae Ponder Todd, fell to the floor in the hallway outside the courtroom and in an audible voice repeatedly cried "I can't do it."

Shortly thereafter, the foreperson returned to the courtroom and the following colloquy took place:

BY THE COURT: Let the record show that the Foreperson of this Jury, Mrs. Martha McGee, has been requested to come back into the Courtroom by the Court and the Court desires to ask a question of Mrs. McGee. Mrs. McGee, I understand that the Juror, Dorothy Mae Ponder Todd a few moments ago upon leaving the Courtroom fainted in the corridor, is that correct?

BY FOREPERSON McGEE: Yes, sir.

BY THE COURT: And you have stated to me that upon returning to the Jury room, this Juror is in your opinion incapable of continuing deliberation in this case because of the fact that she is physically and emotionally unable to continue and participate in the deliberation of this Jury, is that true?

BY FOREPERSON McGEE: Yes, sir, it is.

BY THE COURT: And has this person requested of you that she be released from further service?

BY FOREPERSON McGEE: Yes, sir.

BY THE COURT: In your opinion, from having examined her, is she in this condition?

BY FOREPERSON McGEE: Yes, sir, she is.

BY THE COURT: You may go back to the Jury room.

....

BY THE COURT: Sheriff Bittick, I'm going to direct you to remove Juror Dorothy May Ponder Todd from the Jury room. This is being done at her request and upon the advice and at the request of the Jury Foreperson, Mrs. McGee, conveying this Juror to a doctor or some medical facility for the purpose of having her examined and receiving such treatment as she might require.

The record does not suggest that the court attempted to speak to juror Todd herself concerning her condition. No medical advice was sought, nor were there any precautions taken to guard against the possibility that this juror might simply have been reluctant to continue to maintain her position during deliberations. In any event, Todd was replaced by the first alternate.

During petitioner's state habeas corpus hearing, juror Todd submitted an affidavit which was admitted into evidence. The affidavit stated that Ms. Todd was one of two jurors voting against the death penalty and that her statement "I can't do it" referred to her conviction that a death sentence should not be imposed in this case. The affidavit also makes clear that Ms. Todd felt capable of continuing in jury service and would have so informed the trial court if she had been given the opportunity:

I heard testimony as a juror for the entire sentencing trial as charged by the Court.

After a lunch break on Saturday, November 10, we began deliberations.

I heard all the evidence and particpated [sic] fully in the deliberations. A secret ballot was taken by the foreperson. The vote was 10-2 in favor of the death penalty. I voted against the death penalty.

Just before 5:00 p.m., the jury returned to the courtroom with two questions for the Court concerning whether life imprisonment meant no parole and whether it was possible to have testimony of a witness read to us.

After the judge said what he did, I felt that the other juror would be more likely to give the death sentence because he thought that Roosevelt Green would be paroled.

We then went out of the courtroom. Before I got on the elevator, I collapsed. I had never collapsed before in my entire life.

I had every intention of continuing as a juror. I don't remember ever making any statements to anyone asking to be taken off the jury.

The judge never asked me personally whether I could continue. I was capable of continuing to serve as a juror and I'm sure that I would have standed [sic] firm with my convictions.

(emphasis added).

Petitioner contends that the trial court erred by not questioning juror Todd or further investigating her illness. Green has stated a colorable claim of constitutional magnitude. Under the peculiar facts of this capital case, Green's "valued right to have his trial completed by a particular tribunal," United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), and his sixth amendment right to a fair, impartial and representative jury may well have required that the trial court investigate the need to discharge juror Todd.

Georgia law provided that an alternate juror may be substituted if "a juror ... becomes ill, or upon other good cause shown to the court is found unable to perform his duty." Ga.Code Ann. 59-910. Similarly, a federal district court possesses the discretion to remove a juror when that juror's capacity to perform his duties becomes impaired. "There must be some 'sound' basis upon which the trial judge exercise[s] his discretion" to remove the juror. United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978). Dismissal of a juror "for want of any factual support, or for a legally irrelevant reason" is prejudicial. Id. In many cases the nature of the juror's inability will be evident to the court so that a hearing on the issue is unnecessary. See, e.g., Cherry v. Director, State Board of Corrections, 635 F.2d 414, 417 (5th Cir.1981) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 150, 70 L.Ed.2d 124 (1982) ("Common experience teaches that the sudden death of a juror's parent would so emotionally incapacitate the juror as to make his uninterrupted service impractical"); Henderson v. Lane, 613 F.2d 175, 176 (7th Cir.), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980) (heart attack and hospitalization of juror); United States v. Rodriguez, 573 F.2d at 331-32 (juror failed to appear, instead reporting by telephone that he preferred to go to work); United States v. Smith, 550 F.2d 277, 285-86 (5th Cir.), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977) (two jurors sleeping in open court); United States v. Cameron, 464 F.2d 333 (3d Cir.1972) (juror sleeping); United States v. Meinster, 484 F.Supp. 442 (S.D.Fla.1980), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982) (heart attack).

Where the disability of the juror is less certain or obvious, however, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. See Cherry v. Director, State Board of Corrections, 635 F.2d at 418 (action dismissing juror for illness was "not abrupt, but was taken only after inquiry and overnight deliberation"); United States v. Cohen, 530 F.2d 43, 48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976) (court questioned the sleeping juror before replacing him); United States v. Franks, 511 F.2d 25, 37 n. 19 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975) (court questioned juror before dismissing on basis of nervous condition).

When reviewing a petition for habeas corpus, however, our scope of inquiry is not the broad exercise of supervisory power that federal appellate courts possess in regard to federal district courts. Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Corn v. Zant, 708 F.2d 549, 555 (11th Cir.1983); Stanley v. Zant, 697 F.2d 955, 972 (11th Cir.1983). Before a state prisoner may prevail, he must show that the asserted error is of constitutional magnitude.

The issue raised by Green may well reach such stature. The circumstances of the dismissal of juror Todd raise the suggestion that her refusal to impose the death penalty was a factor in her dismissal. Green v. State, 246 Ga. 598, 272 S.E.2d 475, 487 (1980) (Hill, J., dissenting). If that is the case, then the dismissal may well have violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). According to the Witherspoon standards, a juror's decision that death is not appropriate under the facts of a given case is not constitutionally sufficient to permit her discharge from the jury. Witherspoon makes clear that a juror may be excused from a jury in death-qualification procedures only if her views would compel her to vote automatically against imposition of the death penalty in all cases. The fact that juror Todd was not excluded from the jury during the pretrial death-qualification procedures indicates that her refusal to impose a death sentence in this case stemmed from her determination of the inappropriateness of such a penalty on the facts of this case rather than a general refusal to impose the death penalty in any case.

Certainly it would violate a criminal defendant's due process rights were a court to dismiss a juror because of her refusal to impose the death penalty in a given case. Trial courts have discretion to dismiss ill jurors, but there is no discretion whatever to dismiss such a juror who is not in fact ill or otherwise incapacitated. The Witherspoon dimension of this case indicates that the trial court had a constitutional duty to adequately investigate the need for a discharge prior to dismissing juror Todd. This is especially true because Todd had already actively participated in the jury's deliberations. In such a case, a court's acceptance of ambiguous statements of a foreperson cannot, standing alone, be deemed sufficient.

Our difficulty is that to date no court has made findings of historical fact necessary to resolve Green's constitutional claim. Findings of specific historical facts are entitled to a presumption of correctness under 28 U.S.C. 2254(d). Mason v. Balcom, 531 F.2d 717, 721-22 (5th Cir.1976). Such facts include "a recital of external events and the credibility of their narrators ...." Townsend v. Sain, 372 U.S. 293, 310 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). Specifically, we do not know whether juror Todd was so ill that she was unable to continue deliberations. If she was so incapacitated and if a hearing would have revealed that fact to the trial court, then Green cannot complain that he was prejudiced by the court's failure to hold a hearing. At the other extreme, if a hearing would have revealed that Ms. Todd was clearly able to continue as a juror, then failure to hold the hearing raises the possibility of potentially fatal prejudice.

The primary responsibility for factfinding resides with the state court. Where facts necessary to support a constitutional claim have not been adequately developed in the state courts, however, a federal evidentiary hearing is necessary. Guice v. Fortenberry, 661 F.2d 496, 500-01 (5th Cir.1981) (en banc). In Townsend v. Sain, the United States Supreme Court delineated the circumstances in which a federal evidentiary hearing is mandatory. The Townsend Court held that a federal evidentiary hearing is required whenever "the merits of the factual dispute were not resolved in the state hearing." 372 U.S. at 313, 83 S.Ct. at 757. Thus, the initial task of the federal court is to determine whether the state court made factfindings upon which the federal court may properly review the constitutional claims of state prisoners. There "cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant." Id. at 313-14, 83 S.Ct. at 757. The question of whether factfindings were actually made by the state court is a threshold inquiry. This inquiry must occur prior to any discussion of the presumption of correctness given to factual determinations made by state courts and before examination of the six particularized circumstances which warrant an evidentiary hearing set out in Townsend, 372 U.S. at 313, 83 S.Ct. at 757, and more recently discussed by this court in Coleman v. Zant, 708 F.2d 541, 545-49 (11th Cir.1983) and Thomas v. Zant, 697 F.2d 977 (11th Cir.1983).

State court findings of primary historical fact may be express or implied. While express findings are of course preferable, they are not necessary. "[I]f no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts." Townsend v. Sain, 372 U.S. at 314, 83 S.Ct. at 757. In the latter case the federal court must "reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia." Id. It is also possible to infer factfindings from clearly articulated or well settled legal principles relied on by the state court. This issue may arise in three contexts: the record may clearly reveal that the state court applied the correct legal standard, or it may reveal that it applied the incorrect legal standard, or it may not reveal the standard applied by the state court. Factual reconstruction may be possible in the first two instances; it is most difficult in the third, unless the relevant legal principle is particularly well settled. See generally Wright & Sofaer, Federal Habeas Corpus for State Prisoners: the Allocation of Fact-Finding Responsibility, 75 Yale L.J. 895, 936-40 (1966).

In the present case the state habeas court found only that the trial court "made a proper investigation of a sick juror who had an epileptic seizure during the deliberation of the jury as reflected by the record at page 1,136 and replaced this juror with the first alternate. This was a matter that addressed itself to the discretion of the judge and his actions were a proper exercise of those discretions." The issue for us is whether this statement compels the conclusion that the state court made a finding of fact that juror Todd was too ill to continue as a juror. The court's order and result supports either of two rival interpretations. On the one hand, the court might have found that Todd's affidavit was not credible. On the other hand, the court might have concluded that even if the affidavit was taken as true, Green had failed to sustain his claim of a constitutional violation. The difference is crucial to the scope of our review: the former is presumptively correct but we are not bound by the latter.

We are reluctant to choose between these possible interpretations of the state court's order because the court did not articulate the legal standard it was applying.

Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner's contentions. Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing is compelled to ascertain the facts.

Townsend v. Sain, 372 U.S. at 314, 83 S.Ct. at 757.

Even when the state court does not articulate the legal principle it is using, federal courts may "properly assume that the state trier of fact applied correct standards of federal law to the facts" absent indicia of unreliability. Id. at 315, 83 S.Ct. at 758. There are two indicia of unreliability in this case. First, there is no clear settled standard governing the need for a hearing prior to dismissing an allegedly ill juror. "If the correct standard is well settled, it is proper to assume it was applied" by the state court. Wright & Sofaer, supra at 940. Conversely, in the absence of such a legal standard, it is of increased importance that the state court articulate the theoretical basis of its decision.

Second, the state court stated in its order that juror Todd had become incapacitated by an "epileptic seizure." Nothing in the record suggests that Todd was striken with epilepsy, but it is clear that another juror in this case suffered an epileptic seizure after the period of deliberations had begun. On the day after deliberations began at the guilt-innocence phase, one of the jurors had a seizure in the motel where the jurors were staying. Bailiffs and the sheriff spoke by telephone with the juror's family and his physician. In their discussions with the juror's family the bailiffs were told that the juror "would not remember having a seizure this morning." The trial judge, after hearing the sheriff's recounting of the statements of the juror's family and physician, allowed the juror to continue with deliberations. This incident was entirely separate from the one involving juror Todd.

Thus, we cannot conclude that the state habeas court made a finding of fact that juror Todd was unable to continue with deliberations. Similarly, the Georgia Supreme Court did not make findings of fact. Such findings would be entitled to a presumption of correctness. For purposes of the 28 U.S.C. 2254(d) presumption it does not matter whether the state trial court or appellate court is the factfinder. Sumner v. Mata, 449 U.S. 539, 545-48, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Hance v. Zant, 696 F.2d 940, 957 (11th Cir.1983). The Georgia Supreme Court opinion, however, makes it clear that the crucial factual findings were not made.

During deliberations, a juror fainted and the trial judge questioned the foreperson of the jury as to the physical status of the ill juror. The foreperson answered that the juror was physically and emotionally unable to continue and that the juror had requested to be relieved. The foreperson also told the court that from her personal observation this juror was unable to continue. The trial court excused the juror, and substituted, without objection, the first alternate. Appellant alleges error and argues that the trial court should have questioned the ill juror itself. We do not agree.

Such matters are necessarily within the discretion of the trial court and no abuse of discretion has been shown. The substitution of the alternate juror was proper. Tanner v. State, 242 Ga. 437, 249 S.E.2d 238 (1978); Code Ann. 59-910. Enumeration of error 16 is without merit.

Green v. State, 246 Ga. at 603-04, 272 S.E.2d 475 at 483.

Because material facts pertaining to Green's federal constitutional claim were not adequately developed in the state court, we conclude that an evidentiary hearing and appropriate findings of fact are necessary and we remand for that purpose. Fact finding is the basic responsibility of the district courts, rather than the appellate courts, Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 1791-92, 72 L.Ed.2d 66 (1982); DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1185, 39 L.Ed.2d 501 (1974).

REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH INSTRUCTIONS.

 
 

738 F.2d 1529

Roosevelt Green, Jr., Petitioner-appellant,
v.
Walter D. Zant, Respondent-appellee

United States Court of Appeals, Eleventh Circuit.

July 30, 1984

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

VANCE, Circuit Judge:

This capital case is again before this court following a limited remand for an evidentiary hearing concerning the discharge of a juror after the jury had commenced its deliberations. Since the facts and procedural background of this case are set forth in this court's earlier opinion, Green v. Zant, 715 F.2d 551 (11th Cir.1983) [Green I ], we turn directly to a consideration of the issues raised by petitioner. We conclude that all of petitioner's claims are without merit and therefore affirm the judgment of the district court denying the writ.

When this appeal was first argued, petitioner contended that one of the jurors at his resentencing trial, Mrs. Dorothy Mae Ponder Todd, had been replaced by the trial judge without an adequate inquiry into her ability to continue. Specifically, petitioner alleged that the jury had returned to the courtroom after several hours of deliberations to ask the judge whether petitioner could be sentenced to life imprisonment without possibility of parole. The judge informed the jury that he could not respond to this question, and the jurors filed out into the hallway to return to the jury room. At this point, according to the testimony of petitioner's counsel and a jury consultant retained by the defense, Mrs. Todd apparently experienced an hysterical reaction and fell to the floor, repeatedly crying "I can't do it!" in a voice that was audible within the courtroom itself. Following a colloquy between the trial judge and the jury foreperson, Mrs. Martha McGee, Mrs. Todd was discharged and replaced by an alternate. Petitioner also produced an affidavit from Mrs. Todd in which she stated that she had been one of two jurors holding out against the death penalty, that she "had every intention of continuing as a juror" even after her collapse, and that the trial judge had not questioned her to ascertain her condition before ordering her replacement.1

On the basis of these allegations, this court noted that "Green has stated a colorable claim of constitutional magnitude.... The circumstances of the dismissal of juror Todd raise the suggestion that her refusal to impose the death penalty was a factor in her dismissal." Green I, 715 F.2d at 555-56. Since we concluded that neither the state habeas court nor the state supreme court had made any findings of fact on this issue, id. at 558, we remanded the case to the district court for an evidentiary hearing. In accordance with our instructions, the district court subsequently held a hearing and issued its findings of fact, which were certified to this court in an order dated January 13, 1984. On the basis of the extensive testimony presented at the hearing, the district court held that the facts adduced "permit no other conclusion but that there existed a sound basis for the exercise of the trial judge's discretion in replacing Mrs. Todd with an alternate juror.... Accordingly, petitioner cannot constitutionally complain that he was prejudiced by the trial court's refusal to hold a hearing...." Green v. Zant, No. 82-161-2-MAC, slip op. at 12-13 (M.D.Ga., Jan. 13, 1984). Petitioner challenges the district court's findings, but we conclude that they are not clearly erroneous.

Petitioner contends that the district court's findings should not withstand our scrutiny because they "necessarily rest on [the] acceptance of certain deposition testimony from foreperson Martha McGee that is not only unworthy of belief but is contradicted on key points by every other witness with knowledge of these events." Mrs. McGee testified that she was waiting for the elevator in the hallway outside the courtroom with the other jurors when Mrs. Todd suddenly collapsed.

At that point, I'm in front, and I turn around, and I see Mrs. Todd on the floor; and at that point, she was in a state of emotion that she's jerking and her head is going from side to side, and her eyes--I could almost see the whites of her eyes, and she was not totally flat on her back, but she was sort of on the side, lying with her right side to me. She was muttering, and she was in a terrible state; and at that point, I knelt down and touched her on her shoulder, which would have been her right shoulder, and I hear her say "I can't go on," and I touched her on her shoulder and looked at her, and she looked at me, and I said, "Do you want to be replaced," and her answer to me at that time, and her head is still going and moving, and she is still trembling terribly bad, and her answer is "Uh-huh, uh-huh, uh-huh."

Mrs. McGee indicated that Mrs. Todd made these remarks "in a whisper type tone" that would not have been audible in the courtroom or even to the other jurors standing around in the hallway.

Petitioner charges that Mrs. McGee's testimony is not worthy of credence, noting that no other witness testified to observing Mrs. McGee bending over Mrs. Todd as she was lying on the floor, that no other witness recalled Mrs. Todd saying "I can't go on," and that several of the witnesses indicated that Mrs. Todd was unconscious while lying on the ground. We must expect some inconsistencies, however, when witnesses are interrogated in exhaustive detail concerning their recollections of a brief and startling incident that occurred almost four years earlier. The testimony of several other witnesses supplied at least circumstantial support for Mrs. McGee's account. Two of the other jurors, Mrs. Emmie Adams and Mrs. Belle Schell, as well as one of the bailiffs, Mrs. Mary Sewell, recalled that Mrs. Todd was mumbling or muttering something after she fell to the floor. While they all stated that they could not understand what she was saying, this would be consistent with Mrs. McGee's statement that Mrs. Todd was speaking in an almost inaudible voice. Mrs. Sewell's testimony indicated that she believed Mrs. Todd had first passed out and then had come to and begun rolling around on the floor, which would explain why some witnesses recalled Mrs. Todd as unconscious while others reported her in a semi-conscious or hysterical state. Mrs. McGee's testimony therefore appears generally consistent with the recollections of the other witnesses. Under these circumstances we clearly cannot hold that the district court erred in accepting her version of events.

Other testimony at the evidentiary hearing buttresses the district court's conclusion that the trial judge did not abuse his discretion in dismissing Mrs. Todd. The trial judge himself testified that he had no way of knowing Mrs. Todd's position in the sentencing deliberations, and this claim was supported by Mrs. McGee's testimony. In our initial opinion, we took note of the possibility that the trial judge might have been aware of Mrs. Todd's position in the jury's deliberations. This view was based on petitioner's claim that Mrs. Todd fell to the floor crying "I can't do it!" in a voice that was audible within the courtroom. This claim was completely discredited at the evidentiary hearing, however. The only witnesses who took this view were petitioner's defense counsel and a jury consultant working for the defense team; the other witnesses either indicated that Mrs. Todd said something else or stated that they were unable to understand her, although the other jurors and the bailiffs were much closer than those still inside the courtroom.

Once the suggestion that the trial judge knew of Mrs. Todd's position on petitioner's sentence is dispelled, we are left with no other reason for his actions than his apparent wish to proceed expeditiously with the jury's deliberations. The jury in fact returned to its deliberations after Mrs. Todd was discharged and succeeded in reaching a verdict later that evening. Since Mrs. Todd herself testified that she would not have been able to continue as a juror at that time, we conclude that the trial judge had a sound basis for his decision to discharge Mrs. Todd and that no prejudice resulted to petitioner from the trial judge's failure to question Mrs. Todd personally before dismissing her.

Petitioner asserts that the imposition of the death penalty in his case is unconstitutional under the principles set forth by the Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In Enmund, the Supreme Court held that the eighth amendment does not permit the death penalty to be imposed on a defendant "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id. at 797, 102 S.Ct. at 3376. Petitioner claims that he falls within the Enmund rule because witness Thomas Pasby testified that Moore claimed to have committed the murder after sending petitioner away "to get some gas," and that petitioner "didn't know he was going to shoot her."

This case is distinguishable from Enmund in that it was presented to the jury on a malice murder theory, rather than as felony murder. The prosecutor contended in his closing argument that Green fired the fatal shots, noting that Green was driving the victim's car and was in possession of the murder weapon when he was arrested in South Carolina, and that he had told his girl friend that "he shot or he killed a girl somewhere in Georgia." The trial court instructed the jury on the elements of malice murder and also informed them that they could not find the defendant guilty unless they found "that he was present at the scene of the alleged crime and his presence is an essential element of the crime as alleged in the indictment." Even Pasby's testimony indicated that Green had been a full participant in the robbery of the Majik Market where the victim, Teresa Allen, worked as a cashier, as well as in her subsequent abduction and rape, and that he later assisted Moore in disposing of her corpse. The jury in this case was squarely presented with an indictment charging malice murder; it was carefully instructed on the elements of the offense; and there was evidence in the record to support its verdict. We must therefore conclude that the jury's decision finding Green guilty of malice murder forecloses us from considering petitioner's Enmund argument.

Petitioner next contends that six potential jurors were improperly excused during the voir dire preceding his second sentencing trial because they did not indicate that they were automatically opposed to the imposition of capital punishment in all circumstances, as required by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The record clearly demonstrates, however, that the court committed no error. Jurors Benjamin Hill, Shirley Alford, Lucy Crowder, Lessie Passmore, Jr., and Grady Watson all answered affirmatively when the trial judge asked, "Are each of you saying that no matter what the evidence showed, no matter what type of crime it was, no matter how it occurred or anything about it, that there is no possible way in this world that you would ever vote to impose the death penalty?" All five of these jurors were then subjected to further, dogged interrogation by defense counsel, which failed to elicit any suggestion that they were other than unalterably opposed to the imposition of the death penalty under any circumstances.

Petitioner focuses most of his attention on the case of juror Fannie Mae Watts, who did not step forward when the prosecutor first put the Witherspoon question to the panel. Mrs. Watts was also questioned extensively after she subsequently indicated that she did not believe in the death penalty, and in response to defense counsel's inquiry, "Do you feel there would ever be a circumstance, any circumstance at all under which you would even be able to consider a death penalty?" she replied, "No, I don't." Because all six of these jurors made it clear that they would not consider imposing the death penalty under any circumstances, their exclusion was proper under the principles set forth in Witherspoon.

Petitioner further alleges that he was denied the opportunity to present important mitigating evidence as a result of the district attorney's refusal to cooperate in taking the deposition of Father William James, a Montgomery priest who had been the head of a foster home where petitioner once lived. The facts surrounding this contention appear to be as follows. At the beginning of the trial, defense counsel notified the court that he desired to call Father James to supply mitigating testimony, but suspected that he might be unavailable as a witness except on a date when the prosecution would still be presenting its case in chief. The trial judge indicated that he had some concerns about disrupting the orderly flow of the evidence and also wanted to ensure that the state had an adequate opportunity to cross-examine Father James. He then announced, "Let's do it like that, if the state's not through, I will send the jury to the room and put him up and let him say what he wants to say and let him be cross examined and then at the proper time, I will let you introduce that record."

Several days later, as the court prepared to adjourn for the day, defense counsel announced that he wished to "perfect the record on Father James." He then informed the court:

Father James came to Monroe County last night and was here this morning and at lunchtime I asked the district attorney about taking this man's deposition and the district attorney retorted and responded and said that Father James could wait around like any other witnesses and he didn't care if he had to wait until next Wednesday and that he wasn't going to agree to any deposition now and Father James had to go back to his other appointment and is not available anymore ....

The record therefore clearly reveals that defense counsel failed to approach the court about excusing the jury so that Father James could testify while he was still available to do so. The trial judge's earlier remarks did not indicate that it was necessary for petitioner to secure the state's consent before proceeding to depose Father James, but simply that the judge wished to ensure the state an adequate opportunity for cross-examination. Petitioner was therefore deprived of Father James' mitigating testimony not as a result of the actions of the district attorney or any rulings by the court, but because defense counsel failed to comply with the reasonable instructions issued by the trial judge earlier in the proceedings.

This case is therefore distinguishable from the precedents cited by petitioner. In cases such as Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion), Goodwin v. Balkcom, 684 F.2d 794, 798-803 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983), Spivey v. Zant, 661 F.2d 464, 469-72 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), and Chenault v. Stynchcombe, 581 F.2d 444, 447-48 (5th Cir.1978), the issue was whether the trial court had employed jury instructions that either precluded the consideration of some types of mitigating evidence or were insufficiently clear as to the proper role of mitigating circumstances in the jury's deliberations. In United States v. Goodwin, 625 F.2d 693, 702-03 (5th Cir.1980), United States v. Hammond, 598 F.2d 1008, 1012-15 (5th Cir.), modified, 605 F.2d 862 (5th Cir.1979), and United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977), the defendants claimed that government agents had improperly pressured potential defense witnesses to discourage their testimony at trial. Petitioner's claim is clearly not comparable to those presented by either of these two lines of cases, and we therefore conclude that his argument on this ground is without merit.

Petitioner also charges that the performance of his defense counsel at his second sentencing trial failed to meet minimum standards of constitutional acceptability. Specifically, he contends that his counsel failed to conduct an adequate investigation to locate witnesses who might be able to offer mitigating evidence, that he failed to act to preserve the mitigating testimony that Father James was prepared to offer, that he failed to request a voir dire of juror Todd to determine her fitness to continue on the jury after her collapse, and that he failed to object to the improper questions employed by the trial judge when one of the jurors indicated during a poll of the jury that he did not support the death sentence imposed on petitioner.

The Supreme Court has recently clarified the law governing ineffective assistance of counsel in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court established a two-prong test for analyzing such challenges. First, the defendant must establish that his counsel's performance "fell below an objective standard of reasonableness." Id. at ----, 104 S.Ct. at 2065. Once that threshold is crossed, the defendant must then demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068. Our own cases have established that "[e]ffective assistance does not mean errorless assistance, nor counsel judged ineffective by hindsight," Goodwin v. Balkcom, 684 F.2d at 804, and our determination of whether petitioner was denied effective assistance "must be based on the totality of circumstances in the entire record rather than on specific actions." United States v. Gibbs, 662 F.2d 728, 730 (11th Cir.1981). Thus, even if we agree that any of petitioner's complaints against his counsel is well founded, this does not necessarily mean that constitutionally ineffective assistance has been established.

With regard to the first point raised by petitioner, the Supreme Court held in Strickland v. Washington that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." --- U.S. at ----, 104 S.Ct. at 2066. The record does not contain direct testimony from petitioner's defense counsel concerning his trial strategy, but it is apparent from his arguments on the initial direct appeal and at the resentencing trial that he sought to persuade the jury that petitioner was less culpable in the abduction, rape, and murder of Teresa Allen than his co-accused, Carzell Moore. For example, defense counsel succeeded in winning a reversal of petitioner's initial death sentence from the United States Supreme Court on the grounds that the trial judge had improperly excluded the testimony of Thomas Pasby, which indicated that Moore had murdered the victim while Green was absent from the scene. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). At the resentencing trial, defense counsel stressed this point and emphasized other evidence suggesting that his client had played a secondary role, such as forensic testimony indicating that only Moore had raped the victim and the absence of any footprints in the area around the victim's body that could be traced to petitioner's shoes. In his closing argument, defense counsel contended that his client "should not be made to die for the sin of another.... He didn't kill this girl. He didn't shoot her. The other guy shot her. He didn't know he was gonna shoot her. The other man knew."

Thus, it appears that petitioner's counsel made a strategic decision before the resentencing trial to place his principal emphasis on the argument that petitioner was less culpable than his co-accused, rather than relying heavily on "general affirmations from family members and friends that [the defendant] had been, at a time remote from the events giving rise to the charge, a basically good and responsible child and young adult." Stanley v. Zant, 697 F.2d 955, 967 (11th Cir.1983). In view of the admissions favorable to his client that petitioner's counsel succeeded in extracting from Pasby and the state's forensic witnesses, we cannot say that this choice was an unreasonable one under the circumstances, and we therefore do not believe that the decision to forego an extensive investigation into petitioner's background constituted ineffective assistance of counsel. Similarly, although we have noted above that we believe that defense counsel was responsible for the failure to preserve the supposedly mitigating testimony that could have been offered by Father James, such evidence was not essential to counsel's overall strategy, and we can infer that it would have been largely cumulative of that presented by petitioner's mother and sister, who did testify about the circumstances of his childhood and young adolescence.

The third point raised by petitioner concerns his counsel's failure to request a voir dire of juror Todd following her collapse in the hallway. We have addressed the circumstances surrounding the dismissal of Mrs. Todd at some length above, and it is clear that a voir dire would have revealed that she felt unable to continue with deliberations for at least the remainder of that evening. Because Mrs. Todd would therefore have been discharged by the trial judge in any event, petitioner plainly was not prejudiced as a result of his counsel's failure to request an opportunity to examine her.

Finally, petitioner contends that his counsel erred by failing to object to allegedly improper questions employed by the trial judge during the post-verdict poll of the jury. During the initial poll of the jury, the following exchange took place:

BY THE COURT: Mr. Mobley, Samuel Mobley. You have heard the verdict read, Mr. Mobley, was this your verdict in the jury room?

BY JUROR MOBLEY: Yes, it was, your honor.

BY THE COURT: Is this your verdict now?

BY JUROR MOBLEY: No, it's not, your honor. I cannot do it.

The trial judge immediately directed the jury to return to the jury room. Subsequently, the court examined bailiff Mary Sewell, who reported, "When the jurors got back to the jury room, Mr. Mobley, the black, young man said, 'I did not know what was going on. I don't know--I didn't know what polling the jury was.' " According to Mrs. Sewell, Mobley added that "he felt when they asked him, whatever the question was, that they wanted to know if he was responsible for the whole thing. Somehow he got the idea that the question was directed to him as a person, 'Did you do this?' " The trial judge then recalled the jury and explained that "[t]o poll the jury simply means to ask the juror in open court, after that verdict has been published in court, whether or not that is his or her verdict." The trial judge then proceeded to poll the jury by saying to each juror, "You have heard the verdict published. Is this your verdict?" All of the jurors responded affirmatively.

Petitioner asserts that his counsel erred by failing to object to the trial judge's use of the single question, "Is this your verdict?" rather than asking "whether the verdict was both the juror's verdict in the jury room and was still his verdict," and by failing "to invoke settled Georgia law, under which a nonunanimous verdict in a capital case automatically requires a life sentence." We are not impressed by either contention. Neither the Georgia nor the federal courts have mandated that any particular phrasing be used by a trial judge in polling a jury. Judge Webb of the Georgia Court of Appeals noted in White v. Seaboard Coast Line Railroad, 139 Ga.App. 833, 229 S.E.2d 775, 777 (1976), that "[t]here is no uniformity in, nor statutory authority for, polling a jury," and he proceeded to illustrate the point by citing a variety of formulations which have been approved by Georgia courts over the years. A similar lack of uniformity is apparent in the federal courts. See, e.g., United States v. Millican, 600 F.2d 273, 278 (5th Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980) ("Is this your verdict and the verdict of the jury?"); United States v. Sexton, 456 F.2d 961, 962 (5th Cir.1972) ("Was it your verdict?"); Jackson v. United States, 386 F.2d 641, 642 (D.C.Cir.1967) ("[W]hat say you as to the defendant on count one of the indictment?"). The object of a poll of the jury is to ascertain that the verdict agreed upon in the jury room is still the unanimous verdict of the jury. United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir.1972). Unless the trial judge's interrogation serves to coerce a reluctant juror into changing his vote, Sexton, 456 F.2d at 966, any formulation that meets that end is permissible.

Petitioner's trial counsel also did not necessarily err by failing to request that a life sentence be entered against his client after the initial poll indicated that Mobley did not support the verdict. The fact that one juror intimates that he dissents from the published verdict of the jury does not automatically require that the alternative verdict be entered. The courts have traditionally recognized that jurors are laymen who may be confused by courtroom procedure, and a trial judge may take appropriate steps--such as non-coercive questioning, United States v. Duke, 527 F.2d 386, 394 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976), or directing the jury to retire for further deliberations, Sexton, 456 F.2d at 966-67--to ascertain whether a juror actually intended to dissent from the published verdict. The trial judge here handled the matter properly, and petitioner's trial counsel plausibly may have concluded that Mobley's initial response did in fact appear to be the product of a simple misunderstanding and that further attempts to challenge the unanimity of the verdict would prove unavailing.

We therefore conclude that petitioner's claim of ineffective assistance of counsel is without merit. Although petitioner's trial counsel may have been relatively young and inexperienced in trying capital cases, the record reveals that he conducted a spirited defense and was quite successful in extracting testimony from the state's witnesses in support of his argument that petitioner was less culpable than his co-accused. The mere fact that his efforts were ultimately unavailing is not, of course, a sufficient basis upon which to condemn his performance.

During the resentencing trial, one of the investigating officers who had first examined the murder scene testified that a portion of the victim's ear and various other fragments of skin and bone had been found on the ground near her corpse. Over the objection of defense counsel, the desicated remains of the ear and other fragments of bone and skin were introduced into evidence by the state. Petitioner contends that the introduction of this evidence was needlessly inflammatory and prejudicial, and that the state's actions therefore violate the Supreme Court's mandate in Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) that "any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Although we would not wish to endorse the state's practice, this court has already held that the introduction of such evidence is permissible where it "depict[s] the scene of the crime," Hance v. Zant, 696 F.2d 940, 951 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), and we are of course bound by that decision.

Petitioner also claims that his right to remain silent under the fifth and fourteenth amendments was infringed by certain remarks of the trial judge during petitioner's closing argument to the jury. In accordance with Georgia law, the trial court had authorized petitioner to make a closing argument as co-counsel in his own behalf. During his closing, petitioner sought to persuade the jury that he could not have had the "depravity of mind" required to establish an aggravating circumstance under Off.Code Ga.Ann. Sec. 17-10-30(b)(7). He conceded that the crime was "horrible," but then asked, "how could it cause depravity of mind on my part when I wasn't there; when I didn't have no idea that this man was going to kill this young lady. And sure, it was a horrible murder, but I did not commit the murder, so I didn't inflict the depravity of mind on my part--." At this point the trial judge interrupted and instructed the jury:

[T]his man has not testified during the trial of the case and the State did not have an opportunity to cross examine him and he cannot make an unsworn statement to you at this time concerning the things he's just saying. He's acting as his own co-counsel and he is allowed to argue the evidence in the case, but he cannot get before you now and give testimony or give evidence. That should have come from the stand under oath, if he desired to do it.

Petitioner argues that, even if he did stray into error during the course of his argument, the trial court went far beyond what was necessary in terms of a curative instruction and subsequently failed to cure its own error in commenting upon petitioner's failure to take the stand. In United States v. Lepiscopo, 429 F.2d 258 (5th Cir.), cert. denied, 400 U.S. 948, 91 S.Ct. 255, 27 L.Ed.2d 254 (1970), this court considered a similar argument raised by a defendant appearing pro se who had adopted the practice of making asides to the jury during his questioning of an adverse witness. After twice warning him against making unsworn statements in the presence of the jury, the trial judge rebuked the defendant by stating, "Don't make comments. You'll have your opportunity to be sworn and testify, if you care to do so." The court held that these remarks, comparable to those before us in this case, "did not constitute a comment on defendant's failure to testify but rather reflected his right to take the stand and testify under oath if he so desired." Id. at 260. The Lepiscopo court also noted that the trial judge subsequently instructed the jury that a criminal defendant has the right to testify or to remain silent. Similar instructions were given in this case. We therefore conclude that this claim is without merit.

VIII. THE NONSTATUTORY AGGRAVATING CIRCUMSTANCES ISSUE

Petitioner also contends that the trial judge erred by permitting the state to introduce court records of his prior convictions in Alabama for burglary and assault with intent to rob as aggravating evidence. Petitioner argues that these offenses are not relevant to any statutory aggravating circumstance available under Georgia law and asserts that permitting the state to introduce such evidence is contrary to the principles of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and prior decisions of this court. In the interval since this case was originally briefed the Supreme Court has issued decisions in Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (plurality opinion), that seriously undermine petitioner's argument. In Stephens, the petitioner's death sentence had been based upon multiple aggravating circumstances, one of which--a finding that the defendant had a "substantial history of serious assaultive criminal convictions"--was subsequently invalidated on vagueness grounds by the Georgia Supreme Court. Stephens asserted that his death sentence should be vacated because the sentencing jury might have been swayed by the trial judge's jury instructions or by the evidence introduced in support of this invalid aggravating circumstance. The Court rejected this argument, noting that "[t]he underlying evidence is nevertheless fully admissible at the sentencing phase," --- U.S. at ----, 103 S.Ct. at 2747, since the Georgia statute provides that the sentencing judge or jury "shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions." Off.Code Ga.Ann. Sec. 17-10-2(a); see also id. Sec. 17-10-30(b) (judge or jury shall consider "any mitigating circumstances or aggravating circumstances otherwise authorized by law" in addition to the specified statutory aggravating circumstances). The Court concluded:

Nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making its sentencing determination, [citation omitted], even though the defendant's prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence.

-- U.S. at ----, 103 S.Ct. at 2749 (emphasis in original); see also Barclay, --- U.S. at ----, 103 S.Ct. at 3427; id. at ----, 103 S.Ct. at 3437 (Stevens and Powell, JJ., concurring). Because the jury in this case based its death sentence on a finding of two proper aggravating circumstances, we believe it is clear under Zant v. Stephens and Barclay v. Florida that there was no constitutional error here.

Petitioner further alleges that the constitutional prohibition against double jeopardy was violated at his resentencing trial because the trial judge permitted the state to introduce evidence pertaining to petitioner's alleged rape of the victim and the theft of her automobile. Petitioner argues that his first sentencing jury had refused to find that he was guilty of the aggravating circumstances of rape or auto theft and asserts that this "finding" should stand as res judicata in future trials under Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). We disagree.

It is first necessary to clarify exactly what transpired at petitioner's original sentencing trial. Contrary to what petitioner suggests, the state did not ask for a finding that the murder had been committed in the course of a rape. Instead, it sought a finding that petitioner's crime involved the following three aggravating circumstances: (1) that the offense of murder was committed while the offender was engaged in the commission of the additional capital felonies of the kidnapping and armed robbery of Teresa Allen; (2) that the defendant committed the offense of murder for the purpose of receiving money and other things of value, namely, the victim's car; and (3) that the offense of murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture to the victim and depravity of mind on the part of the defendant. The jury returned a death sentence based upon its finding that the first and third of these aggravating circumstances were present.

It is well established under Georgia law that sexual abuse may constitute "torture" for the purpose of finding an aggravating circumstance under section 17-10-30(b)(7). See Burger v. Zant, 718 F.2d 979, 986 (11th Cir.1983). Thus, the jury may well have taken the alleged rape into account in its consideration of whether the crime demonstrated torture to the victim and depravity of mind on the part of the defendant. Without an implicit refusal to find petitioner guilty of rape, there clearly is no constitutional barrier to admitting evidence of the alleged rape at petitioner's second sentencing trial.

In any event, we find petitioner's reliance on Bullington misplaced. In Bullington, the Court held that "[b]ecause the sentencing proceeding at petitioner's first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial." 451 U.S. at 446, 101 S.Ct. at 1862 (emphasis added). The Court's decision in Bullington therefore turned on its conclusion that a Missouri jury's verdict at the sentencing phase of a capital trial is more properly analogous to a decision on guilt/innocence than it is to a noncapital criminal sentence, stressing such differences as the use of a reasonable doubt standard and other procedural devices that "explicitly require [ ] the jury to determine whether the prosecution has 'proved its case.' " Id. at 444, 101 S.Ct. at 1861 (emphasis in original).

One key distinction between petitioner's situation and that of Robert Bullington is immediately apparent--Bullington had been spared at his initial sentencing trial, whereas petitioner was sentenced to death at his. Since it has long been established that "there is no double jeopardy bar to retrying a defendant who has succeeded in overturning his conviction" on legal grounds, id. at 442, 101 S.Ct. at 1860,2 petitioner's claim must ultimately rest on an extension of the Court's reasoning in Bullington to encompass the argument that factual findings on statutory aggravating circumstances are also the equivalent of a jury verdict on guilt or innocence. This we decline to do. As the Georgia Supreme Court pointed out while rejecting a similar argument in Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, --- U.S. ----, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983):

Aggravating circumstances are procedural safeguards designed to control a jury's discretion in capital cases in order to ensure against capricious and arbitrary enforcement of the death penalty. [Citations omitted] Aggravating circumstances are not substantive "penalties" or "offenses"; they do not place the defendant's life in peril or subject him to a possible "conviction"; they are standards which guide a jury's decision on what does place the defendant[']s life in jeopardy at the sentencing trial--the death penalty.

Id. 290 S.E.2d at 38. We would further note that a jury need find only a single aggravating circumstance to impose the death sentence, Off.Code Ga.Ann. Sec. 17-10-31, and that the jury has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present. Id.; Gregg v. Georgia, 428 U.S. at 203, 96 S.Ct. at 2939. Thus, the legal significance that attaches to a jury's decision whether to state a given aggravating circumstance in support of its verdict is simply not comparable to that of the verdict itself. We therefore conclude that the analogy the Supreme Court drew between the verdict at a guilt/innocence trial and that at a sentencing hearing cannot be extended to cover a jury's findings on statutory aggravating circumstances.

The considerations stated in the preceding section also require us to reject petitioner's final contention: that his fourteenth amendment right to a fair trial at the sentencing phase was violated by the trial judge's refusal to instruct the jury that a defendant is presumed innocent of aggravating circumstances. Petitioner reasons that the presumption of innocence has been recognized as an essential component of the right to a fair trial, see Taylor v. Kentucky, 436 U.S. 478, 479, 98 S.Ct. 1930, 1931, 56 L.Ed.2d 468 (1978), and contends that since the Supreme Court has held that "the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause," Gardner v. Florida, 430 U.S. at 358, 97 S.Ct. at 1204, the presumption of innocence should be applied at the sentencing phase as well.

As we indicated above, petitioner's argument ultimately founders upon the rocks of a false analogy between aggravating circumstances and the underlying criminal offense. First, while it is true that a Georgia sentencing jury cannot recommend the death penalty unless it finds that at least one aggravating circumstance exists beyond a reasonable doubt, Off.Code Ga.Ann. Sec. 17-10-30(c), the jury is not required to return a death sentence whenever aggravating circumstances are found to exist. The function of statutory aggravating circumstances in Georgia is in fact quite limited: they serve to winnow down the number of cases in which the death penalty can be imposed by requiring the jury to focus its consideration on the particular circumstances of the crime. Once the jury has found that a given case is one of the limited number in which the death penalty is a possible sanction, however, its discretion in selecting capital punishment is absolute. Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1, 3 (1982). Thus, while a finding of each element of an offense beyond a reasonable doubt will result in a conviction for that offense, a similar finding beyond a reasonable doubt of an aggravating circumstance will not automatically trigger a sentence of death.

Therefore, the considerations that justify the presumption of innocence at a defendant's original trial are simply inapplicable here. A defendant does not arrive at the penalty phase of a capital proceeding with a clean slate, and there is no point in pretending otherwise. The state's evidence at the original trial is usually adopted in its entirety at the sentencing proceeding, and the state's proof that the accused committed the underlying offenses usually encompasses its proof as to statutory aggravating circumstances.3 Because the same jurors (at least in the first instance) usually make the decision on both guilt/innocence and punishment, it would elevate form over substance to instruct them that the evidence which they have just evaluated and found convincing beyond a reasonable doubt should be disregarded in favor of granting the defendant a presumption of innocence. We also note that the Supreme Court has repeatedly found that a defendant's due process rights are adequately protected by the provisions of the existing Georgia capital punishment statute, which does not create a presumption against the existence of statutory aggravating circumstances. In view of these considerations, we believe the trial court did not err in refusing to employ the instruction requested by petitioner.

CONCLUSION

We have carefully reviewed the contentions presented by petitioner and conclude that all of them are without merit.

AFFIRMED.

*****

1

In her affidavit, juror Todd stated:

I reside at 71 Jones Street, Forsyth, Georgia.

I am employed by the Bibb Company in Forsyth.

I was selected to serve as a juror in the case of the State of Georgia v. Roosevelt Green in November of 1979, in the resentencing trial.

The only issue to be determined was whether Mr. Green should receive a life sentence or the death penalty.

I heard testimony as a juror for the entire sentencing trial as charged by the Court.

After a lunch break on Saturday, November 10, we began deliberations.

I heard all the evidence and participated fully in the deliberations. A secret ballot was taken by the foreperson. The vote was 10-2 in favor of the death penalty. I voted against the death penalty.

Just before 5:00 p.m., the jury returned to the courtroom with two questions for the Court concerning whether life imprisonment meant no parole and whether it was possible to have testimony of a witness read to us.

After the judge said what he did, I felt that the other juror would be more likely to give the death sentence because he thought that Roosevelt Green would be paroled.

We then went out of the courtroom. Before I got on the elevator, I collapsed. I had never collapsed before in my entire life.

I had every intention of continuing as a juror. I don't remember ever making any statements to anyone asking to be taken off the jury.

The judge never asked me personally whether I could continue. I was capable of continuing to serve as a juror and I'm sure that I would have standed [sic] firm with my convictions.

2

A different rule applies to cases in which the reversal is for insufficiency of the evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Petitioner also cites Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) in support of his argument, but Ashe is inapposite since it applies only to cases in which multiple criminal prosecutions grow out of a single alleged criminal act. The petitioner in Ashe, for example, had been acquitted in a prior prosecution for robbing one of the players at a poker game and was subsequently tried and convicted on another robbery charge growing out of the same event. In this case, in contrast, petitioner can point to neither a prior valid judgment nor an acquittal

3

For example, it would frequently be impossible to distinguish the evidence that establishes that a murder was committed from the evidence that establishes that it was committed in an "outrageously or wantonly vile, horrible or inhuman" way under Off.Ga.Code Ann. Sec. 17-10-30(b)(7)

 
 

U.S. Supreme Court

GREEN v. ZANT , 469 U.S. 1143 (1985)

469 U.S. 1143

Roosevelt GREEN, Jr., Petitioner,
v.
Walter D. ZANT, Superintendent, Georgia Diagnostic & Classification Center

No. 84-5609 (A-503)

Supreme Court of the United States

January 7, 1985

The application for stay of execution of sentence of death presented to Justice POWELL and by him referred to the Court is denied. The petition for rehearing is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 , 2950, 49 L. Ed.2d 859 (1976) (BRENNAN, J., dissenting), I would grant the application for a stay of execution. But even if I believed otherwise, I would at the very least stay this impending execution pending the outcome of related cases now before the Court of Appeals for the Eleventh Circuit.

Justice BLACKMUN and Justice STEVENS dissent and would grant the application for stay of execution pending the ultimate resolution of the cases now pending in the United States Court of Appeals for the Eleventh Circuit and cited in Justice BRENNAN's dissent, post, p. 828.

Justice POWELL took no part in the consideration or decision of this application and petition.

In his petitions for state and federal habeas relief, the applicant Roosevelt Green, Jr., has unsuccessfully requested evidentiary hearings to substantiate his allegation that he received the death penalty pursuant to a pattern and practice of racial discrimination in the administration of Georgia's capital sentencing system. The Eleventh Circuit en banc is currently considering three cases that present the identical issue and turn on the identical statistical evidence. See, e.g., Ross v. Hopper, 716 F.2d 1528 (CA11 1983), rehearing en banc granted, 729 F.2d 1293 (CA11 1984); Spencer v. Zant, 715 F.2d 1562 (CA11 1983), reconsideration en banc stayed, 729 F.2d 1293 (1984); McCleskey v. Zant, 580 F.Supp. 338 (N. D.Ga.1984), hearing en banc granted, 729 F.2d 1293 (1984). As I argued last month in my dissent in Stephens v. Kemp, 469 U.S. 1043, 1058 , 105 S. Ct. 530, 540 (1984)-a case that also hinged on the claims and evidence instantly at issue-"there is at the very least a substantial question whether [the petitioner's] fate should be governed by the outcome of the consolidated cases that are now pending before the Eleventh Circuit en banc. . . ." Because "a person should not be executed while the constitutionality of his sentence is in doubt," Stephens v. Kemp, 469 U.S. 1098, 1099 (1984) (BRENNAN, J., dissenting), I would accordingly stay Green's execution pending the ultimate resolution of Ross, Spencer, and McCleskey.

 

 

 
 
 
 
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