JOHNSON, Circuit Judge:
Willie Jasper Darden appeals the denial by the district court of his habeas corpus petition, challenging the constitutionality of his conviction and death sentence. As grounds for relief, petitioner claims that he was denied effective assistance of counsel, that the prosecutors’ closing arguments to the jury denied him a fair trial, and that venirepersons were improperly excluded from the jury in violation of the rule of Witherspoon v. Illinois. This Court sitting en banc has twice considered issues raised by this appeal and has concluded on the basis of the Supreme Court’s uniform and consistent application of the rule in Wither-spoon that the district court’s denial of ha-beas relief must be reversed.
Darden was charged with first degree murder, robbery and assault with intent to commit murder in the first degree based upon events occurring at Carl’s Furniture Store in Lakeland, Florida, on September 8, 1973.1 The jury found Darden guilty on all three counts and recommended the penalty of death. The trial court concurred in the jury’s recommendation and imposed the death sentence.
Darden’s conviction and sentence were affirmed by the Florida Supreme Court in Darden v. State, 329 So.2d 287 (1976). The United States Supreme Court initially granted Darden’s petition for writ of certio-rari, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282, but later dismissed the writ as improvidently granted, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751.
After the Governor of Florida signed a warrant for Darden’s execution, Darden filed a petition for habeas relief in the United States District Court for the Middle District of Florida, raising the issues presented in this appeal. The court entered a stay of execution and assigned the case to a magistrate who, after a hearing on the ineffective assistance of counsel claim, rec[1528]*1528ommended that the district court grant the habeas petition on the basis of Darden’s claims of prosecutorial misconduct during closing argument and improper juror excu-sal. The district court rejected the magistrate’s recommendation and denied habeas relief. Darden timely noticed this appeal.
1. THE WITHERSPOON ISSUE
The Legal Standard. During the jury qualification and selection procedure, the trial court excused for cause several venirepersons who expressed opposition to the death penalty. Petitioner argues that two of these dismissals were errors of constitutional magnitude under the standard established by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
In Witherspoon, the Supreme Court held that a death sentence “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.” Id. at 522, 88 S.Ct. at 1777 (footnote omitted). Witherspoon recognized that a jury purged of all those who express religious or conscientious scruples against capital punishment is not the impartial jury promised by the Sixth and Fourteenth Amendments; it is instead “a jury uncommonly willing to condemn a man to die.” Id. at 521, 88 S.Ct. at 1776. The Court at the same time recognized the necessity of excusing jurors whose intractable opposition to capital punishment would distort their judgment on the facts developed in the case before them and would frustrate the state’s legitimate efforts to implement an otherwise constitutional death penalty scheme. The Court thus fashioned the rule that prospective jurors cannot be excused from jury service on the basis of their opposition to the death penalty unless they make 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.
Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).
This Circuit strictly adheres to the mandate of Witherspoon, Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982),2 which we understand to require that
[o]nly the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Wither-spoon grounds.
Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir.1979), adhered to en banc, 626 F.2d 396 (1980).
Witherspoon sets a strict legal standard and imposes as well a very high standard of proof. The venireperson must make it “unmistakably clear” that he or she will automatically vote against the death penalty. 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. “Unless a venireman states unambiguously that he would automatically vote against imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Id. at 515-16 n. 9, 88 S.Ct. at 1773-74 n. 9. Thus, any ambiguity must be resolved by not excluding the venireperson from the jury.
The Standard of Appellate Review. Application of the Witherspoon rule and its standard of proof has generated a plethora of cases in which appellate courts have closely reviewed trial courts’ voir dire examinations of prospective jurors to deter[1529]*1529mine whether those excluded made unmistakably clear their rigid resolve to oppose the death penalty. In these many cases, no court has explicitly determined the standard that should govern appellate review of trial courts’ Witherspoon decisions. Courts instead have proceeded without discussion to review independently the transcript of the voir dire questioning and to determine whether the constitutional standards articulated in Witherspoon were met. The question of the appropriate standard of review recently has come to the fore with some suggestion that Witherspoon review should accord considerable deference to the decision reached by the trial judge. See O'Bryan v. Estelle, 714 F.2d 365, 391-96 (5th Cir.1983) (Higginbotham, J., concurring); id. at 400-12 (Buchmeyer, J., dissenting); Alderman v. Austin, 695 F.2d 124, 128-34 (5th Cir. Unit B 1983) (en banc) (Fay & Roney, JJ., dissenting). The time thus seems appropriate to decide directly the standard that appellate courts should apply in reviewing Witherspoon exclusions.
Although no court previously has explicitly decided the proper standard of review in Witherspoon cases, the manner in which appellate courts, including the Supreme Court, have conducted the many reviews that they have made of Witherspoon decisions provides guidance for this Court’s decision.
Free access — add to your briefcase to read the full text and ask questions with AI
JOHNSON, Circuit Judge:
Willie Jasper Darden appeals the denial by the district court of his habeas corpus petition, challenging the constitutionality of his conviction and death sentence. As grounds for relief, petitioner claims that he was denied effective assistance of counsel, that the prosecutors’ closing arguments to the jury denied him a fair trial, and that venirepersons were improperly excluded from the jury in violation of the rule of Witherspoon v. Illinois. This Court sitting en banc has twice considered issues raised by this appeal and has concluded on the basis of the Supreme Court’s uniform and consistent application of the rule in Wither-spoon that the district court’s denial of ha-beas relief must be reversed.
Darden was charged with first degree murder, robbery and assault with intent to commit murder in the first degree based upon events occurring at Carl’s Furniture Store in Lakeland, Florida, on September 8, 1973.1 The jury found Darden guilty on all three counts and recommended the penalty of death. The trial court concurred in the jury’s recommendation and imposed the death sentence.
Darden’s conviction and sentence were affirmed by the Florida Supreme Court in Darden v. State, 329 So.2d 287 (1976). The United States Supreme Court initially granted Darden’s petition for writ of certio-rari, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282, but later dismissed the writ as improvidently granted, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751.
After the Governor of Florida signed a warrant for Darden’s execution, Darden filed a petition for habeas relief in the United States District Court for the Middle District of Florida, raising the issues presented in this appeal. The court entered a stay of execution and assigned the case to a magistrate who, after a hearing on the ineffective assistance of counsel claim, rec[1528]*1528ommended that the district court grant the habeas petition on the basis of Darden’s claims of prosecutorial misconduct during closing argument and improper juror excu-sal. The district court rejected the magistrate’s recommendation and denied habeas relief. Darden timely noticed this appeal.
1. THE WITHERSPOON ISSUE
The Legal Standard. During the jury qualification and selection procedure, the trial court excused for cause several venirepersons who expressed opposition to the death penalty. Petitioner argues that two of these dismissals were errors of constitutional magnitude under the standard established by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
In Witherspoon, the Supreme Court held that a death sentence “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.” Id. at 522, 88 S.Ct. at 1777 (footnote omitted). Witherspoon recognized that a jury purged of all those who express religious or conscientious scruples against capital punishment is not the impartial jury promised by the Sixth and Fourteenth Amendments; it is instead “a jury uncommonly willing to condemn a man to die.” Id. at 521, 88 S.Ct. at 1776. The Court at the same time recognized the necessity of excusing jurors whose intractable opposition to capital punishment would distort their judgment on the facts developed in the case before them and would frustrate the state’s legitimate efforts to implement an otherwise constitutional death penalty scheme. The Court thus fashioned the rule that prospective jurors cannot be excused from jury service on the basis of their opposition to the death penalty unless they make 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.
Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).
This Circuit strictly adheres to the mandate of Witherspoon, Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982),2 which we understand to require that
[o]nly the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Wither-spoon grounds.
Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir.1979), adhered to en banc, 626 F.2d 396 (1980).
Witherspoon sets a strict legal standard and imposes as well a very high standard of proof. The venireperson must make it “unmistakably clear” that he or she will automatically vote against the death penalty. 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. “Unless a venireman states unambiguously that he would automatically vote against imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Id. at 515-16 n. 9, 88 S.Ct. at 1773-74 n. 9. Thus, any ambiguity must be resolved by not excluding the venireperson from the jury.
The Standard of Appellate Review. Application of the Witherspoon rule and its standard of proof has generated a plethora of cases in which appellate courts have closely reviewed trial courts’ voir dire examinations of prospective jurors to deter[1529]*1529mine whether those excluded made unmistakably clear their rigid resolve to oppose the death penalty. In these many cases, no court has explicitly determined the standard that should govern appellate review of trial courts’ Witherspoon decisions. Courts instead have proceeded without discussion to review independently the transcript of the voir dire questioning and to determine whether the constitutional standards articulated in Witherspoon were met. The question of the appropriate standard of review recently has come to the fore with some suggestion that Witherspoon review should accord considerable deference to the decision reached by the trial judge. See O'Bryan v. Estelle, 714 F.2d 365, 391-96 (5th Cir.1983) (Higginbotham, J., concurring); id. at 400-12 (Buchmeyer, J., dissenting); Alderman v. Austin, 695 F.2d 124, 128-34 (5th Cir. Unit B 1983) (en banc) (Fay & Roney, JJ., dissenting). The time thus seems appropriate to decide directly the standard that appellate courts should apply in reviewing Witherspoon exclusions.
Although no court previously has explicitly decided the proper standard of review in Witherspoon cases, the manner in which appellate courts, including the Supreme Court, have conducted the many reviews that they have made of Witherspoon decisions provides guidance for this Court’s decision. The predominant if not exclusive method of review undertaken by the federal courts, whether on direct review or in habeas proceedings, has been an independent review, based upon a close study of the voir dire transcript to determine whether a venireperson was improperly excluded from the jury. See, e.g., Adams v. Texas, 448 U.S. 38, 49-51, 100 S.Ct. 2521, 2528-29, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 595-97, 98 S.Ct. 2954, 2959-61, 57 L.Ed.2d 973 (1978); Maxwell v. Bishop, 398 U.S. 262, 264-65, 90 S.Ct. 1578, 1580-81, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 482-84, 89 S.Ct. 1138, 1140-42, 22 L.Ed.2d 433 (1969); Spencer v. Zant, 715 F.2d 1562, 1576-77, reh’g granted en banc, 729 F.2d 1293 (11th Cir.1983); King v. Strickland, 714 F.2d 1481, 1492-93 (11th Cir.1983); Witt v. Wainwright, 714 F.2d 1069, 1080-83 (11th Cir.1983); Hance v. Zant, 696 F.2d 940, 954-56 (11th Cir.1983); Beil v. Watkins, 692 F.2d 999, 1006-08 (5th Cir.1982); Williams v. Maggio, 679 F.2d 381, 383-86 (5th Cir.1982) (en banc), cert. denied, — U.S. —, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983); Alderman v. Austin, 663 F.2d 558, 562-64 (5th Cir. Unit B 1982), aff’d in relevant part, 695 F.2d 124 (1983) (en banc); Granviel v. Estelle, 655 F.2d 673, 677-78 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Burns v. Estelle, 592 F.2d 1297, 1300-01 (5th Cir. 1979), adhered to en banc, 626 F.2d 396, 397-98 (1980).
The approach taken by the courts is consistent with the demands of the law. Application of the Witherspoon rule involves a mixed question of law and fact, which makes it a determination subject to independent review by an appellate court. See Cuyler v. Sullivan, 446 U.S. 335, 341—42,100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, J.); Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.1983); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); see also Pullman-Standard v. Swint, 456 U.S. 273, 289-90 n. 19, 102 S.Ct. 1781, 1790-91 n. 19, 72 L.Ed.2d 66 (1982) (citing Supreme Court authority for independent appellate court review of mixed questions of law and fact).
Mixed questions of law and fact involve “ ‘the application of legal principles to the historical facts of [the] case.’ ” Hance, supra, 696 F.2d at 947 (quoting Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1715). “ ‘Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the [Federal] Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.’ ” Id. (quoting Brown v. Al-[1530]*1530lea, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, J.)).
The trial judge during voir dire questioning must apply the Witherspoon legal standard to the venireperson’s responses. He or she must interpret the legal significance of the answers given. The answers alone do not dispose of the issue; the judge must decide whether the responses make unmistakably clear the prospective juror’s unbending opposition to capital punishment. Because the trial court undertakes this application of law to fact, the court on appeal must independently review the colloquy preserved in the voir dire transcript to determine whether the trial court correctly applied the constitutional standard to the statements made.3
While the appellate court clearly bears the responsibility to review independently the mixed question of fact and law involved in a Witherspoon determination and ultimately to decide whether Wither-spoon ’s requirements were met, that responsibility does not preclude the court on appeal from according deference to the decision of the trial judge who had an opportunity to hear the venirepersons’ responses and observe their demeanor. See McCorquodale v. Balkcom, 721 F.2d 1493, 1498 (11th Cir.1983) (en banc); see also O’Bryan v. Estelle, 714 F.2d 365, 393-96 (5th Cir. 1983) (Higginbotham, J., concurring) (independent appellate review to determine whether trial court abused its discretion). Review of the Witherspoon questions posed to the veniremembers, because it involves only a determination whether the trial court employed the proper legal standard, remains always a matter exclusively for the court on appeal. Appellate review of the venirepersons’ responses to those questions, however, because it involves a determination of the intended meaning of the responses given, as well as application of the appropriate legal standard, may benefit by consideration of the trial judge’s interpretation. The court on appeal, thus, should grant deference to the trial judge’s assessment of the venirepersons’ responses, including the venirepersons’ demeanor and the clarity of the venirepersons’ responses, to questions posed. However, the prescribed independent appellate review of mixed questions of fact and law and With-erspoon 's strict rule that venirepersons make unmistakably clear their automatic opposition to capital punishment ultimately require an appellate court to reach its own judgment on the question whether a venire-person was improperly excluded from a jury. See McCorquodale, supra, 721 F.2d at 1498.
Application of the Standard. Darden challenges the excusal for cause of venire-persons Varney and Murphy. He maintains that their responses to voir dire questions failed to make unmistakably clear their unbending opposition to capital punishment.
Improper exclusion of even one venireperson is a sufficient basis for granting the habeas petition in this case. See Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976); Witt v. Wainwright, 714 F.2d 1069, 1081 & n. 8 (11th Cir.1983). Careful review of the voir dire transcript in this case reveals that venireperson Murphy was excused in violation of the Witherspoon principles. We therefore find it unnecessary to consider whether venireperson Varney also was improperly excused.
Only one question purporting to relate to the Witherspoon principles was asked of venireperson Murphy.
THE COURT: Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own [1531]*1531principles to vote to recommend a death penalty regardless of the facts?
MR. MURPHY: Yes, I have.
THE COURT: All right, sir, you will be excused then.
Record at 165 (emphasis added).
The court in this instance applied the wrong legal standard.4 The question in a Witherspoon inquiry is not whether prospective jurors could vote for the death penalty without violating their principles, but whether, if they have principles against capital punishment, they could put them aside and vote for the death penalty when the law and the facts of the case require it. Witherspoon and its progeny explicitly recognize that some jurors, notwithstanding their opposition to capital punishment, would be willing to return a verdict of death, making their scruples subservient to their duty as jurors. Adams v. Texas, 448 U.S. 38, 44—45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); Boulden v. Holman, 394 U.S. 478, 483-84, 89 S.Ct. 1138, 1141-42, 22 L.Ed.2d 433 (1969); Witherspoon v. Illinois, 391 U.S. 510, 515-16 n. 9, 88 S.Ct. 1770, 1773-74 n. 9, 20 L.Ed.2d 776 (1968).
The government argues that the question asked of Mr. Murphy and Mr. Murphy’s response must be read in light of the trial court’s earlier correct statement of the Witherspoon issue. If the question directed to the venireman was imperfect, the government maintains that the prior correct statement of the issue cures any With-erspoon error.
In determining whether a prospective juror was properly excluded, the court considers the entire voir dire to place in proper context the venireperson’s responses. Witt v. Wainwright, 714 F.2d 1069, 1083 (11th Cir.1983); King v. Strickland, 714 F.2d 1481, 1492-93 (11th Cir.1983). Just as the Court “does not require that the venireperson utter a pat phrase, the incantation of which magically frees the power of excusal from its yoke of unconstitutionality,” Witt, supra, 714 F.2d at 1083, so the Court will review the “totality of the circumstances of the voir dire,” id., to determine whether the trial court correctly posed the Witherspoon questions to the venireperson who was excused.
In the trial of this case, the judge at the start of the voir dire called twelve venire-persons into the jury box.5 Addressing the people seated in the jury box, the judge then stated:
THE COURT: Now I am going to ask each of you individually the same question so listen to. me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation? Do you understand my question?
Record at 43.
At the time that this statement was made, Mr. Murphy was not among those seated in the jury box. The statement thus was not even addressed to him. Later in the voir dire — one hundred and twenty-two pages later in the voir dire transcript — Murphy was seated in the jury box, and the improper question was posed to him. In view of this Court’s strict adherence to the requirements of Witherspoon, Granviel v. Estelle, [1532]*1532655 F.2d 673, 677 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982), and the strict requirements of Witherspoon itself, we cannot assume that Mr. Murphy heard the correct articulation of the Witherspoon standard or that, if he heard it, he remembered it and knew it to be the correct statement of the question when he was later questioned incorrectly.6
Witherspoon makes clear that death sentences cannot stand in cases in which venirepersons were excluded on any broader basis than that established by the Witherspoon opinion. 391 U.S. at 521-22 n. 21, 88 5. Ct. at 1776-77 n. 21. This firm rule requires that we grant the habeas petition in this case.
The decision to recommend a sentence of death places upon a jury a most awesome responsibility. The trial judge bears the ultimate responsibility to provide each defendant a fair trial and an impartial jury, and the selection of the men and women who serve on the jury in a capital case requires great diligence. Inquiry, on voir dire, as to the prospective jurors’ views on the death penalty is a critical inquiry. Improper Witherspoon questioning can lead to the unconstitutional exclusion of jurors whose reservations about the death penalty do not disqualify them from service. Should any be so excluded, the death penalty cannot, constitutionally, be imposed, no matter what the evidence may show, for their exclusion denies the defendant an impartial jury and produces instead a jury that is “uncommonly willing to condemn a man to die.” Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776 (1968).
The Witherspoon rule, though articulated over 15 years ago and applied many times by many courts over the course of its life, all too frequently forms the basis for a reversal of a death sentence. State trial courts and federal district courts must exercise greater care to ensure that the Supreme Court’s requirements are met. Only a procedure that employs precise questions — questions that clearly pose the twofold Witherspoon inquiry set out in footnote 21 of the Supreme Court’s opinion — and that elicits unmistakably clear answers from each venireperson can satisfy the Court’s strict standard.
II. THE PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES
Petitioner also appeals the district court’s denial of his request for habeas corpus relief based on his claim of prosecutorial misconduct in the state’s closing argument to the jury and his assertion of ineffective assistance of counsel. The en banc court concludes that the panel’s evaluation of these issues was correct and reinstates the relevant portion of the panel’s opinion, 699 F.2d at 1033-37.
III. CONCLUSION
The district court’s denial of the writ of habeas corpus on the basis of its determination under Witherspoon is reversed. The State shall be prohibited from carrying out the sentence in this case unless the petitioner is afforded a new sentencing hearing within a reasonable time to be fixed by the district court. The district court’s denial of [1533]*1533habeas relief on the basis of its review of petitioner’s claims of prosecutorial misconduct and ineffective assistance of counsel is affirmed. The case is remanded for proceedings not inconsistent with this opinion.
REVERSED in part; AFFIRMED in part; REMANDED.