Jack E. Alderman v. Sam Austin, Warden, Georgia State Prison

663 F.2d 558, 1981 U.S. App. LEXIS 15285

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 11, 1981
• Docket: 80-7820
• Status: Published

Opinions

JAMES C. HILL, Circuit Judge:

Jack E. Alderman was indicted, tried, convicted, and sentenced to death by electrocution for the 1974 murder of his wife, Barbara J. Alderman. Following unsuccessful direct attacks ¹ upon his conviction and sentence, Alderman petitioned through the state court system for writ of habeas corpus. These collateral attacks too failed. But upon Alderman’s petition for federal relief, see 28 U.S.C. § 2254 (1976), the United States District Court, Southern District of Georgia, granted the writ. We affirm in part, reverse in part, and remand, 498 F.Supp. 1134.

I.

Petitioner, on September 19, 1974, approached his close friend John A. Brown for assistance in murdering petitioner’s wife. Petitioner offered Brown compensation: the two were to split the proceeds of Mrs. Alderman’s life insurance policy. Several days hence petitioner summoned Brown to the Aldermans’ apartment, handed him a 12-inch crescent wrench, and instructed Brown to hit Mrs. Alderman. Brown was reluctant but was persuaded by the point of petitioner’s gun. Brown entered the dining room where Mrs. Alderman stood and struck her head with the wrench. She screamed and ran to the living room only to confront her husband who brought her to the floor and held her down. Petitioner and Brown began to strangle Mrs. Aider-man, stopping only after she passed out. Petitioner then filled a bathtub with water. Mrs. Alderman was dragged into the bathroom and placed in the tub with her face submerged.

The two men left the apartment for several hours. When they returned, they removed Mrs. Alderman’s body from the tub, rolled it in a quilt, and placed it in the trunk of her car. Brown drove the car; petitioner followed on a motorcycle. Alongside a creek in Rinean, Georgia, the body was taken from the trunk and placed in the driver’s seat. The car brake was released allowing the car to roll into the creek where it and the body were soon discovered.

At trial, petitioner denied he killed his wife.² His testimony was that he quarreled with his wife on the evening of her death. Later that evening, he drove his motorcycle to her grandmother’s house in search of her. On the way, petitioner testified, he passed the Rinean, Georgia creek and observed the family car in it. He went down to the creek, saw his deceased wife, cradled her head in his lap thereby staining his clothing with the blood later noticed by police, and fled the scene in shock and fear.

The jury determined guilt accompanied by two statutory aggravating circumstances: (1) Ga.Code Ann. § 27-2534.1(b)(4), i. e., murder “committed . . . for the purpose of receiving money or any other thing of monetary value”; and (2) Ga.Code Ann. § 27-2534.1(b)(7), /. e., murder which was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”

Petitioner’s habeas corpus action alleges constitutional error, committed by the state court, on two grounds. First, he asserts that jury exposure to a single comment made by a prosecution witness during trial testimony violated the teaching of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its lineage. Second, he argues that his jury suffered from defects of the type held violative of due process in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We proceed to analyze the facts and law involved in these contentions.

II.

At petitioner’s state court trial, the prosecution called Georgia Bureau of Investigation special agent H. H. Keadle to testify concerning Keadle’s interview with petitioner held shortly after petitioner had identified his wife’s body at the Effingham County, Georgia, Hospital. The relevant testimony³ contained a single reference by Keadle to the fact that petitioner, at one point in the interview, had expressed his wish to exercise the right to an attorney and to remain silent. Keadle’s reference was neither solicited by the prosecutor, objected to by the petitioner’s attorney, nor mentioned again in the course of trial.

Petitioner first raised this issue on direct appeal to the Supreme Court of Georgia, which was unimpressed with it on several levels.⁴ Petitioner argues here, as he did with success in the district court, that he was under “custodial interrogation,” see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), at the time of his interview with Agent Keadle. Such being the case, his exercise of guaranteed constitutional rights was permitted to haunt him at trial.

The district court studied the evidence and found the alleged constitutional error harmful. We disagree. The standard employed by the district court, purportedly but incorrectly drawn from Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), explains the court’s mistaken impression that the error was not harmless. Chapman held that:

When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, /. e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.

547 F.2d at 1249 (emphasis added). The district court relied on similar language, appearing elsewhere in Chapman and describing yet another case, United States v. Impson, 531 F.2d 274 (5th Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978), for the proposition that a petitioner’s exculpatory theory must be totally implausible and the indicia of his guilt not overwhelming. Applying the test conjunctively rather than disjunctively, the district court erred. For in this case, the indicia of guilt clearly was overwhelming, and here, as in Chapman, the harmless error presented itself in a single, isolated response by a witness during trial testimony. Moreover,

. . . Neither the prosecutor nor any prosecution witness tied together the fact of [petitioner’s] silence with his improbable story. The jury was never told that silence could be used for impeachment purposes. Neither in cross-examination nor in argument did the prosecutor suggest that silence impeached [petitioner’s] trial testimony.

Id. See also United States v. Shavers, 615 F.2d 266, 270 (5th Cir. 1980). The error here involved is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

III.

Petitioner persuaded the federal district court that he had been convicted by a state court jury whose composition was unconstitutional under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Knowing that he intended to ask that petitioner be executed, the prosecutor for the State of Georgia on voir dire probed each venireman as to his views on capital punishment. In order to exclude from the jury those veniremen who would not vote to inflict death, the prosecutor propounded a series of penetrating questions to each. Specifically, the inquiry was whether a venireman regardless of his overall feelings about the death penalty could, if called upon to act as jury foreman, actually sign his name to the verdict. Three prospective jurors were reticent on this point. The colloquy involving one of them is demonstrative:

Q. [A] little while ago . . . you stated that you were not conscientiously opposed to capital punishment. Now, under Georgia law, if you believe from the evidence and the Charge of the Court that the death penalty was called for under the facts of this case, could you vote yes to inflict the death penalty?

A. Yes.

Q. You feel that you could?

A. Yes.

Q. All right, now, going a step further with this . . ., if you were selected to serve as foreman on this jury and the other eleven jurors believed that the evidence and the law required that the death penalty was proper and should be voted for in this case, could you, as foreman of the jury, following instructions given you by Judge Cheatham, write out the verdict on the indictment and sign your name to it as foreman?

A. I don’t know. I don’t think I could do that.

Q. I beg your pardon?

A. No, I don’t believe I could do that.

Q. You don’t believe you could do that?

A. No.

Q. Even though the judge instructed that if you believed from the evidence that the death penalty was warranted and you were the foreman of the jury, you could not write it out?

A. No.

MR. DREW: If your Honor please—

THE COURT: Why not?

A. I don’t know. I just wouldn’t want to convict anybody. I’d feel guilty.

THE COURT: Well, you would have already convicted him and as foreman, it’s your responsibility — let us assume that you had convicted him — as foreman, it would be your responsibility to write that out; you say you couldn’t do that?

A. No.

THE COURT: She has already said that she could vote to convict him .... and could vote to give him the death penalty, but could not write it out. What’s the difference in your mind? ....

A. I don’t know. This would be on my conscience. I just couldn’t write it out.

Record, Vol. Ill, at 936-38. Two other veniremen responded in similar fashion. Following each venireman’s expression of inability- — as foreman — to sign a verdict that would effect capital punishment of a defendant, the prosecutor moved successfully to strike that venireman from the jury for cause. Petitioner objected to each of the three exclusions for cause on Wither-spoon grounds.

IV.

The sixth amendment, applicable to the states through the fourteenth, see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), guarantees a defendant “[i]n all criminal prosecutions, . . . the right to a speedy and public trial, by an impartial jury . . . . ” U.S.Const., amend. VI. In order to ensure the requisite impartiality, the Supreme Court has held that juror selection methods that “produce[] a jury uncommonly willing to condemn a man to die,” Witherspoon, supra, 391 U.S. at 521, 88 S.Ct. at 1776 (footnote omitted), are unconstitutional. Only a venireman who “states unambiguously that he would automatically vote against the imposition of capital punishment,”⁵ id. at 523 n.21, 88 S.Ct. at 1777 n.21 (emphasis added), notwithstanding the evidence introduced by the parties or the law charged by the judge, can be excluded constitutionally from jury service in a capital ease. Only such a venireman, the Court has said, “would clearly be unable to follow the law ... in assessing punishment.” Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

Such however is not the case here. The veniremen at issue evidenced no “unambiguous” intent to oppose capital punishment either in principle or in the trial of this particular petition. They expressed quite the contrary, in point of fact, inasmuch as each articulated an affirmative response to the State’s direct inquiry into his ability to vote for execution. The state suggests, however, that these veniremen were incapable of discharging their duties since any member of a venire potentially can be called upon to act as foreman and thus to accomplish the very act these three prospective jurors could not conscientiously do, viz., sign the jury verdict that would effectuate electrocution. While the Supreme Court has explicated that a juror holding views on capital punishment that “would prevent or substantially impair the performance of his duties,” id., may be excluded, we reject the State’s suggestion that service as foreman is among every juror’s duties. Moreover, we know of no Georgia law requiring any juror to serve, against his will, as foreman of the jury in any case.

It does not appear that these veniremen were incapable of voting in full accord with the evidence, as they viewed it, and with the judge’s charge. Whether a venireman could sign, in good conscience, a verdict that would result in a defendant’s execution is immaterial to jury service under Witherspoon. The action by the state court leaves us, to be sure, “with veniremen . . . excluded on [a] . . . broader basis than” Witherspoon and subsequent authority⁶ permit, and with a “death sentence [that] cannot be carried out . ⁷ Witherspoon, supra, 391 U.S. at 522 n.21, 88 S.Ct. at 1777 n.21. Witherspoon, supra, 391 U.S. at 522 n.21, 88 S.Ct. at 1777 n.21.

The district court order issuing the Writ, on the basis of Witherspoon v. Illinois, is affirmed. Petitioner’s existing death sentence shall not be carried out. The district court’s finding of harmful constitutional error on petitioner’s Doyle v. Ohio ground is reversed. The case is remanded for proceedings not inconsistent with this opinion. It is so ORDERED.

AFFIRMED in part; REVERSED in part; REMANDED.

1 . Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978).

2 . Amplification of petitioner’s defense may be found in Alderman v. State, 241 Ga. at 498-99, 246 S.E.2d at 644.

3 . Q. Now after Mr. Alderman was taken from the hospital to Sheriff Fulcher’s office, did you interview him at Sheriff Fulcher’s office?

A. Yes, sir.

Q. Was Mr. Alderman in custody at this time, under arrest, or were you simply discussing with him this unfortunate occurrence.

A. At first, we were simply discussing it and trying to find out a little bit of background, when he had last seen her and one thing and another like that when the interview began.

Q. Sir?

A. When the interview began, we were trying to run down some preliminary things, when he had last seen her, you know, the routine things that you would on an investigation; that was when the interview began. Of course, it wasn’t until the termination of the interview that the stains that 1 mentioned earlier were noticed.

Q. Mr. Keadle, when you observed these stains that you have referred to, these reddish-brown stains on Mr. Alderman’s trousers and I believe you said something similar in appearance on his belt, did you call these to his attention or discuss it with him or ask him what it was or anything?

A. Shortly before that, we, of course as I said we began with the preliminary just trying to get the background for the investigation started, how long it had been since he had seen her and one thing and another like that, and then toward the end of the interview, he became sort of frustrated with the nature of the questions being asked him, and he decided at that time he would exercise his right to an attorney, and so at that time the interview was just terminated when he stated that he wished to remain silent. He was asked no questions regarding the stains, he was merely informed by me that I was seizing his clothing as evidence.

4 . The Supreme Court of Georgia dealt with this issue in a somewhat alternative fashion. The Court affirmed on Georgia’s “contemporaneous objection” rule, which permitted the conclusion that “Appellant’s [petitioner’s] failure to object below to the admission of the complained of testimony constitute^] a waiver” regarding which petitioner could not complain on appeal. 241 Ga. at 504, 246 S.E.2d at 648. Perhaps uncomfortable with allowing a “constructive” waiver of a right to result in petitioner’s death by electrocution, the Georgia Supreme Court went on to (1) consider the merits of petitioner’s Doyle v. Ohio, claim, adjudging it nonmeritorious; and (2) determine that even if the claim did amount to constitutional error, that error was “harmless beyond a reasonable doubt,” Id. at 505, 246 S.E.2d at 649. Georgia Supreme Court Justice Harold N. Hill, Jr. observed that the “majority [of the Georgia Supreme Court] is unsure of its basis for affirming this death penalty.” Id. at 514, 246 S.E.2d at 653 (Hill, J., dissenting). Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which flowed directly from the notion of an “adequate state ground,” would often operate to preclude federal consideration on habeas petition of issues deemed waived by virtue of a state’s contemporaneous objection rule. But on direct appeal, the Georgia Supreme Court’s “ambivalent” majority opinion, brimming with alternative decisional grounds, leads us to conclude that that court was not convinced of the adequacy of the nonfederal ground on the Doyle issue. We, then, likewise are not constrained to defer to that ground.

5 . Witherspoon did not nor do we confront the question whether an impartial factfinder may determine that a venireman’s initial responses to questions on voir dire were false. A penetrating cross-examination of a venireman might, for example, reveal his resolve to sit on a jury in a capital case in order to “veto” a death penalty. Although the trial court in the case sub judice made no such findings, we do not read Witherspoon as a blanket prohibition on excluding such a venireman.

6 . Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969).

7 . The state has argued further that because it retained sufficient peremptory challenges to exclude all three veniremen here without cause, the state court’s action was in the nature of “harmless error” and thus constitutionally palatable. As amicus curiae NAACP Legal Defense & Educational Fund, Inc. correctly points out, we have rejected this position on prior occasion, Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir. 1979), approved in, 626 F.2d 396 (5th Cir. 1980) (en banc), and we do so again today. “No jury from which even one person has been excused on . .. [grounds broader than Wither-spoon] may impose a death penalty or sit in case where it may be imposed, regardless of whether an available peremptory challenge might have reached him.” 592 F.2d at 1300.