Leon Rutherford King v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent

850 F.2d 1055, 1988 U.S. App. LEXIS 11068, 1988 WL 76322

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 27, 1988
• Docket: 86-2006
• Status: Published

Opinions

EDITH H. JONES, Circuit Judge:

The issue before our Court en banc is whether a capital murder defendant is constitutionally entitled to question prospective jurors about their understanding of Texas parole law. We conclude that the Constitution does not require such an inquiry, and accordingly we vacate the prior panel opinion to the contrary and deny petitioner’s application for a writ of habeas corpus.¹

BACKGROUND

King has twice been tried and sentenced to capital punishment by Texas juries. A brief summary of the grisly crimes that led to imposition of the severest criminal penalty against King is pertinent to our discussion.² King and his cohort Allen Ray Carter kidnapped 26-year-old Michael Clayton Underwood and his girlfriend Kay at gunpoint ten years ago as they were leaving a Houston nightclub. The two men decided they ought to “waste” Underwood and threatened Kay with the same fate if she did not stop crying. They drove in King’s pickup truck to an isolated vacant lot not far from Houston’s Hermann Park. Kay was forced to watch while King beat Underwood’s head in with a shotgun butt until it looked like a “broken egg.” For nearly five additional hours, King and Carter repeatedly raped and sodomized Kay, continued to threaten her life, and jeered at having made her observe the execution of her “old man.” Before they released Kay, King removed from her purse a slip of paper containing her address and again threatened to kill her if she called the police. Kay was found, bedraggled and hysterical, slumped behind the wheel of her car at approximately 5:00 a.m. She later testified at King’s trials.

King stated to the jury during the punishment phase of his second trial: “You all found me guilty of one of the most brutal murders that have ever been in Houston. If I had found a man guilty of that type of murder I figure he deserves the death penalty and that’s what I am asking you is that the jury give me the death penalty. That’s what I want.”

PERTINENT PROCEDURAL HISTORY

At the start of voir dire, the state court refused defense counsel’s request

“[T]o voir dire each and every prospective juror on the question of being convicted of capital murder and in the event of a life sentence that person has to serve 20 years before becoming eligible for parole in light of the fact that the prospective juror is advised the mandatory sentence for capital murder is life or death.”

King founded this request on Tex. Const, art. 1, § 19, and the fourteenth amendment to the federal constitution. At the time of trial, however, Texas law forbade jurors to consider information bearing on parole in any criminal case.³ The jurors were charged at the punishment phase of the trial as follows:

You are instructed that the punishment for capital murder is by death or confinement in the penitentiary for life ...

You are not to discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of Board of Pardons and Paroles and the Governor, and are no concern of yours.

King did not request a jury instruction concerning Texas parole law.

DISCUSSION

King contends that the state court violated his sixth and fourteenth amendment guarantees to a trial by a fair and impartial jury⁴ by refusing to allow him to question the jurors — or educate them in voir dire— concerning their knowledge of Texas parole laws. He asserts that if they harbor misconceptions about Texas law, for instance, an erroneous belief that a capital murder defendant may become eligible for parole in seven to ten years, they will be biased toward imposing the death penalty. On the other hand, he suggests, proper knowledge about the 20-year minimum prison term prior to parole eligibility in such cases will tend to reassure them that King does not pose the future dangerousness to society contemplated by Special Issue # 2 of the Texas capital punishment law.⁵ If the logic underlying King’s position seems technical to the point of absurdity given the gruesome and wanton nature of his crime, its legal support, which requires a significant extension of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), and preceding case law, is even thinner. For the following reasons, we reject King’s novel theory.

The sixth and fourteenth amendments secure the right of an accused in all criminal prosecutions to trial by an impartial jury. Turner, 476 U.S. at 36, 106 S.Ct. at 1688 n. 9, 90 L.Ed.2d 27. Trial courts bear the principal responsibility to implement this important guarantee. Voir dire “plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). Voir dire interrogation can detect veniremen who will not be able to follow the court’s instructions and evaluate the evidence, and it facilitates the exercise of peremptory strikes. Id. Because the adequacy of voir dire turns on the trial judge’s evaluation of demeanor evidence and responses to questions, id., the Supreme Court has sharply distinguished between constitutional review of voir dire in matters that would tend to expose significant prejudice and questions that have a more tenuous bearing on jury selection:

The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Voir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” This is so because the “determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.”

Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976) (citations omitted). In Rosales-Lopez, the Court further observed: “Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire.” 451 U.S. at 188-89, 101 S.Ct. at 1634.

This rule of deference has been generally and uniformly applied. Beginning with Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Court “held that adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.” Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984) (explaining Irvin). In Irvin, however, the Court noted that the trial court’s findings of juror impartiality will be overturned only for “manifest error.” 366 U.S. at 723, 81 S.Ct. at 1643. Patton, the most recent pretrial publicity case in the Supreme Court, rejected an appellate decision that jury impartiality is a mixed question of law and fact, rendering inapplicable the presumed correctness of a state court’s factual findings under 28 U.S.C. § 2254(d). The Court held that the partiality of jurors “is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Id. 467 U.S. at 1036, 104 S.Ct. at 2891. Patton thus emphasizes the necessity to rely on a trial court’s finding of fact concerning impartiality, both as a matter of common sense and as a requirement of 28 U.S.C. § 2254(d).

In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Court held that under all the circumstances, including the defendant’s defense that law enforcement officers had framed him in retaliation for his active and well-known participation in civil rights activities, he was constitutionally entitled to question prospective jurors about their racial prejudice. But, as the Court later explained, Ham did not constitutionalize racial voir dire interrogation in every case involving a minority defendant. Ristaino, 424 U.S. at 596, 96 S.Ct. at 1021; Rosales-Lopez, 451 , 101 S.Ct. at 1635.⁶

Critical to King’s contention is Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), in which the Court relied explicitly on Ham to hold “that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. ... [A]s in other cases involving ‘special circumstances,’ the trial judge retains discretion as to the form and number of questions on the subject[.]” Id. at 36-37, 106 S.Ct. at 1688. Lest there be any doubt that Turner’s, requirement is limited to voir dire concerning racial prejudice in capital cases, Justice White’s opinion specifically notes:

What we held in Ristaino, and reaffirm today, is that absent “special circumstances” that create a particularly compelling need to inquire into racial prejudice, the Constitution leaves the conduct of voir dire to the sound discretion of state trial judges.

Id. 476 U.S. at 38 n. 12,106 S.Ct. at 1689 n. 12. Even the dissenters in Turner interpreted that decision as extending only to the question of possible racial bias among prospective jurors in capital cases. Id. at 43-47, 106 S.Ct. at 1692-93 (Justices Marshall and Brennan, concurring in the judgment in part and dissenting in part; Justices Powell and Rehnquist, dissenting).

Turner emphasizes its continuity with the Court’s prior decisions placing seminal reliance upon the trial court to eliminate biased veniremen from juries. The decision thus may not fairly be read to imply that the threat of capital punishment, standing alone, is sufficient to warrant intrusive judicial review of a state court’s jury selection process. King’s argument to the contrary must fail.

Because King’s proposed voir dire inquiry draws no support from Supreme Court caselaw, we must nevertheless determine whether the principles derived from those cases justify constitutionalizing, at a defendant’s request, voir dire consideration of parole eligibility. Three broad inquiries are relevant: (1) whether a juror’s knowledge or misconception about parole is so influential that it would generally impair his impartiality; (2) whether any such misconception would be curable by instruction of the trial court; and (3) whether, in any event, a juror’s misconception about Texas parole law would have harmed King’s position in this case.

Racial prejudice and widespread and provocative pretrial publicity have furnished the only grounds accepted to date by the Supreme Court for a constitutional challenge to the trial court’s voir dire procedure. The Court has emphasized that “[t]he Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice him.” Ristaino, 424 U.S. at 594, 96 S.Ct. at 1020. A. graphic example of the Court’s distinction appears in Ham, where a seven-member Court majority rejected the defendant’s contention that he was constitutionally entitled to inquire whether jurors were prejudiced toward people with beards. The Court concluded:

While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States [51 S.Ct. 470, 75 L.Ed. 1054 (1931) ], supra and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question.

409 U.S. at 527-28, 93 S.Ct. at 851, 35 L.Ed.2d at 51. Ham’s trial and conviction occurred circa the late 1960’s and early 1970’s, at the apogee of student and political activism, when the wearing of a beard might well have been thought to prejudice many prospective jurors. Nevertheless, the Court refused to constitutionalize an inquiry which, in its view, would have suggested no principled limits on intrusive appellate review of voir dire.

We, likewise, are unable to distinguish possible prejudice based on jurors’ misconceptions about parole law from “a host of other possible similar prejudices.” The views of a lay venireman about parole are no more likely to be both erroneous and prejudicial than are his views on the defendant’s right not to take the stand, the law of parties, the reasonable doubt standard, or any other matter of criminal procedure. It is difficult to conceive how we could constitutionalize the inquiry concerning Texas parole while leaving these similar but also potentially influential matters to the broad discretion of the state trial court. In fact, we have previously declined to sanction constitutional challenges to the failure to conduct voir dire on the range of punishment for an offense and the meaning of certain words in the capital murder statute. See Milton v. Procunier, 744 F.2d 1091 (5th Cir.1984); cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985); Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983), cert. denied, 46 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984). Deference to the state courts in those matters counsels deference here as well. Interrogating veniremen about Texas parole law raises, if anything, a more attenuated possibility of prejudice than does a question about jurors’ attitudes toward people with beards. The specific inquiry does not approach a level of constitutional sensitivity.

The potential influence of a juror’s misconception about parole eligibility may also be mitigated by other facets of the trial process, such as the breadth of voir dire as a whole and the jury charge. Our court has previously considered, and found wanting, constitutional challenges to voir dire in state criminal trials where the entire voir dire and the court’s charge together satisfactorily explained the law and the jury’s function. See Selvage v. Lynaugh, 842 F.2d 89, 91-93 (5th Cir.1988); Milton v. Procunier, 744 F.2d at 1095-97; Moreno v. Estelle, 717 F.2d at 178-79. See also Byrne v. Butler, 845 F.2d 501, 505-08 (5th Cir.1988) (rejecting constitutional challenge based on petitioner’s alleged inability to question jurors on Louisiana parole law). In this case, a lengthy and painstaking voir dire was conducted, resulting in the questioning of over five dozen prospective jurors. Repeatedly, the court and counsel advised the veniremen that the capital murder statute offered only two sentencing options: death or life imprisonment. The jury was charged at the punishment phase of trial that, according to Texas law, they were not entitled to consider “how long the accused would be required to serve the sentence,” and “the punishment for capital murder is by death or confinement in the penitentiary for life.” The state aptly characterizes this instruction as stating that “life means life.” If the jurors paid attention during voir dire and followed the trial court’s charge, as we generally presume they do, any pre-existing misconception about parole law would have been ignored.

We see no merit, and considerable mischief, in constitutionally requiring voir dire on Texas parole law notwithstanding that Texas disallows jury consideration of the possibility of parole in its deliberations. Rose v. State, at 532. Texas policy follows that of the large majority of states and avowedly seeks to assist defendants by forbidding a jury to increase their punishment in anticipation of possible parole or clemency. Id. at 536. Contrary to this policy, King would re-inject notions of parole eligibility at the forefront of the judicial proceedings. Moreover, King has not suggested what response might properly be made by the state if, during voir dire, a defense counsel misstated applicable parole law. It is counterintuitive to imply that the average juror would become more favorably disposed to the average criminal defendant by exposure to some or all of the complexities of parole law during voir dire. We are further reluctant to require asymmetrical constitutional requirements for voir dire and the jury deliberations because of the Supreme Court’s determination that a jury instruction on a capital defendant’s eligibility for parole or commutation of sentence does not raise a constitutional issue. California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).

We should finally consider whether, even if King had possessed a constitutional right to question the jury concerning their views of Texas parole law, any error by the trial court actually prejudiced him. We conclude that any such error was rendered harmless by the court’s unobjected charge requiring the jury to disregard parole and by King’s testimony in the punishment phase of trial. King told the jury that he expected to receive the death penalty, admitted that he deserved it, and requested that it be imposed. Any subliminal effect of a juror’s impressions concerning parole must surely be subordinated to the impact of this testimony. Add to this the determinedly sadistic nature of the crime and associated events, and we find it impossible to think that a jury would have somehow believed King less dangerous to society (including that of the prison in which he is incarcerated) in twenty years than he would be if paroled in seven to ten. King’s crime, and his revelry in it, leave no room for hypothesizing that a jury, faced with the information about parole for which King contends, would have been more lenient. If anything, given the egregious nature of this case, a suggestion to prospective jurors that King might return to society in twenty years could very easily have predisposed them to impose a death sentence.

The judgment of the district court is AFFIRMED.

1 . With one exception, we adopt the panel’s analysis of other issues raised by petitioner, none of which are meritorious. See King v. Lynaugh, 828 F.2d 257 (5th Cir.1987). That exception is the majority’s treatment of the issue whether King was constitutionally entitled to have the jury charged concerning Texas parole law. A panel of our court has previously rejected this position. See O'Bryan v. Estelle, 714 F.2d 365, 388-89 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). As King’s counsel conceded at oral argument, this issue is procedurally barred by King’s failure to request such a charge at trial. Tex.Code Crim.Pro.Ann. arts. 36.14, 36.15 (Vernon Supp. 1988), 36.19 (Vernon 1981); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); OBryan, 714 F.2d at 384-85. We disagree with the contention that King’s voir dire request, quoted infra at 1057, and corresponding objection were sufficient to preserve the issue of the constitutionality of a jury charge on Texas parole law. The purposes of voir dire questions and jury instructions are distinct, as are the constitutional amendments (the sixth or eighth) under which King’s argument pertaining to these phases of trial would proceed. This is true despite some overlap between the issues. A trial court could not fairly be held to have addressed or ruled on whether the eighth amendment requires juror consideration of parole as a "mitigating factor” at the defendant’s capital punishment hearing, just because it previously rejected his sixth amendment contention that in order to impanel an impartial jury he must be allowed to question them on their knowledge of parole laws. See King v. State, 631 S.W.2d 486, 490 n. 8 (Tex.Crim.App.1982) (en banc).

2 . For additional facts, see King v. State, 631 S.W.2d 486 (Tex.Crim.App.1982) (en banc). Like the Texas Court of Criminal Appeals, we call the female victim “Kay" as a protective pseudonym.

3 . See, e.g., Munroe v. State, 637 S.W.2d 475, 476 (Tex.Crim.App.1982) (en banc) ("Our cases have clearly held that any discussion of the parole law by the jury constitutes jury misconduct. ... The parole law is simply not to be considered by the jury dining its deliberations.”).

Subsequent to affirmance of King’s direct appeal and prior to the issuance of the panel opinion, Texas amended its statutes to require the trial court to submit certain instructions regarding good conduct time and parole eligibility to the jury at the punishment phase of trials for non-capital felonies. See, e.g., Tex.Code Crim.Pro.Ann. art. 37.07, § 4(a) (Vernon Supp. 1986). The Texas Court of Criminal Appeals recently held that such instructions violate the separation of powers doctrine in Tex. Const. Art. II, § 1, and the due process clauses of Tex. Const. Art. I, §§ 13, 19. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987).

4 . The dissent briefly posits as an additional, novel ground for King’s position that because this is a capital case, the eighth amendment’s prohibition on cruel and unusual punishment somehow expands King’s sixth amendment guarantee. If this were the case, much of the Supreme Court’s discussion in Turner v. Murray, and its reliance upon sixth amendment authorities, would have been unnecessary. 476 U.S. 28, 106 S.Ct. 1683, 1686, 1688 and n. 9, 90 L.Ed.2d 27. We do not view the eighth amendment as expanding the substantive guarantees of other provisions of the Constitution.

5 . See Tex.Code Crim.Pro.Ann. art. 37.071(b)(2) (Vernon Supp. 1988). The 20-year minimum prison term has been reduced to 15 years. Id. at art. 42.18, § 8(b)(1) (Vernon Supp.1988).

6 . In Ristaino and Rosales-Lopez, the Court held that the defendant was not necessarily entitled to make such inquiries. Rosales-Lopez made this point clear:

[T]here is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice. Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court’s denial of a defendant’s request to examine the jurors’ ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.

Absent such circumstances, the Constitution leaves It to the trial court, and the judicial system within which that court operates, to determine the need for such questions.

451 U.S. at 190, 101 S.Ct. at 1635 (emphasis added; citation omitted).