Timothy Wesley McCorquodale v. Charles Balkcom, Warden, Georgia State Prison

721 F.2d 1493, 1983 U.S. App. LEXIS 14055
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 30, 1983
Docket82-8011
StatusPublished
Cited by27 cases

This text of 721 F.2d 1493 (Timothy Wesley McCorquodale v. Charles Balkcom, Warden, Georgia State Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timothy Wesley McCorquodale v. Charles Balkcom, Warden, Georgia State Prison, 721 F.2d 1493, 1983 U.S. App. LEXIS 14055 (11th Cir. 1983).

Opinions

KRAVITCH, Circuit Judge:

The petitioner, Timothy Wesley McCor-quodale, was convicted by a jury of first degree murder and sentenced to death.1 The Georgia Supreme Court affirmed the conviction and sentence on direct appeal, McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), and the United States Supreme Court denied a petition for writ of certiorari. McCorquodale v. Georgia, 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976).

[1495]*1495The petitioner subsequently filed a petition for a writ of habeas corpus in state court, which was denied, McCorquodale v. Stynchcombe, 239 Ga. 138, 236 S.E.2d 486 (1977), cert. denied, 434 U.S. 975, 98 S.Ct. 534, 53 L.Ed.2d 467 (1977). McCorquodale then filed an extraordinary motion for a new trial based upon newly discovered evidence, which, after an evidentiary hearing, was also denied, and the denial was affirmed on appeal. McCorquodale v. State, 242 Ga. 507, 249 S.E.2d 211 (1978).

After his failure to obtain relief in the state courts, McCorquodale brought the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Georgia. He raised six contentions in support of his petition, attacking both his conviction and his sentence. The district court found all of the arguments to be without merit and denied habeas corpus relief. McCorquodale v. Balkcom, 525 F.Supp. 408 (N.D.Ga.1981). A panel of this court affirmed the denial of relief as to five of McCorquodale’s arguments, but reversed as to his sentence, directing that the writ of habeas corpus issue because the petitioner’s constitutional right to a fair and impartial jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), had been violated. McCorquodale v. Balkcom, 705 F.2d 1553 (11th Cir.1983). This court elected to hear the case en banc, and we now hold that the district court properly denied the writ in concluding that the voir dire procedures comported with Wither-spoon standards.

I. The Witherspoon Rule

The Supreme Court in Witherspoon v. Illinois enunciated the rule that:

a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

391 U.S. at 522, 88 S.Ct. at 1777 (footnotes omitted). The Court clarified in a footnote the two reasons why a juror could be excused for cause in the Witherspoon context:

We repeat, however, that nothing we say today bears upon the power of a state to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made it unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21 (emphasis in original). Witherspoon’s holding thus struck a balance between “the state’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths,” Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), and a defendant’s right to have a neutral jury not “uncommonly willing to condemn a man to die.” Witherspoon, 391 U.S. at 521, 88 S.Ct. at 1776; see also Adams, 448 U.S. at 44, 100 S.Ct. at 2526.

The petitioner advances three arguments as to why the voir dire proceedings in his case violated Witherspoon’s standards: (1) the collective questioning of the venireper-sons and their non-verbal responses failed to ensure that each individual juror would unequivocally refuse to impose the death penalty or impartially deliberate on the defendant’s guilt; (2) the Witherspoon questions asked at voir dire were insufficient; and (3) the questions asked to and the responses by two of the jurors dismissed for cause, jurors Woodlief and Kidd, were insufficient.

II. Group Questioning and Non-Verbal Responses

At voir dire the prosecutor collectively asked a series of three questions to the approximately sixty jurors comprising the jury pool. The prosecutor first asked:

[1496]*1496Are you conscientiously opposed to capital punishment? If you’re conscientiously opposed to capital punishment, if you will, please stand. If you are not conscientiously opposed to capital punishment, remain seated.

Nineteen jurors stood up in response to this question.

The prosecutor then posed the two additional questions required by Witherspoon to those jurors who had stood up, asking them to step forward if they would answer the question affirmatively:

The first question is this. Would you allow your opinion about capital punishment to prevent you from voting for the death penalty in this case, regardless of what the evidence was?
The [second] question is this. Would you allow your opinion about capital punishment to prevent you from being a fair and impartial juror on the issue of guilt or innocence as distinguished from the issue of punishment? If you would, would you please step forward.

The prosecutor then moved the court to dismiss the fifteen jurors who had stepped forward. The court granted the motion over defense counsel’s general objection.

The manner in which voir dire was conducted in this case raises two questions of first impression:2 whether Witherspoon requires individual questioning of prospective jurors and whether their responses must be verbal. Necessarily involved in answering the last question is another issue which has yet to be resolved in the Witherspoon context: 3 what degree of deference, if any, should be granted to a trial court’s assessment of whether a juror’s responses are “unmistakably clear” so as to satisfy With-erspoon.

We hold that group questioning and nonverbal responses do not constitute a per se violation of Witherspoon. Witherspoon governs the substance of the inquiry to be made, not its form, and only requires that the voir dire method used for questioning and receiving responses allows a court to determine in the particular case at hand that the excluded venirepersons “made unmistakably clear” that their attitude toward the death penalty would either automatically cause them to vote against the death penalty or prevent them from impartially deciding the defendant’s guilt.

In this case, posing the Witherspoon

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Bluebook (online)
721 F.2d 1493, 1983 U.S. App. LEXIS 14055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-wesley-mccorquodale-v-charles-balkcom-warden-georgia-state-ca11-1983.