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Witt v. Wainwright

U.S. Court of Appeals, Eleventh Circuit

June 20, 1983


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

Author: Tuttle

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Johnny Paul Witt appeals from the district court's denial of his petition for a writ of habeas corpus. Petitioner was convicted of first degree murder in Florida and sentenced to death. In this appeal, he challenges the district court's determination of his claims regarding: (1) the admission into evidence of inculpatory statements rendered after he requested an attorney; (2) the Florida Supreme Court's alleged use of non-record material in reviewing his sentence; (3) the admission into evidence during the penalty phase of petitioner's trial of testimony by psychiatrists to whom petitioner had made inculpatory statements during a competency and sanity examination; (4) the trial court's reliance upon non-statutory aggravating circumstances in the sentencing order; and (5) the excusal of three prospective jurors for cause based upon their opposition to the death penalty.

We find, after a thorough review of the entire record, that the district court properly disposed of the first three of petitioner's claims listed above. We are unable to agree with the district court, however, that the trial court did not commit error of constitutional dimension when it dismissed for cause a prospective juror who expressed her opposition to the death penalty, but who failed to indicate her unequivocal inability to apply the law as charged. This error mandates our reversal of the district court's decision denying petitioner's request for resentencing.


Petitioner was convicted of first degree murder for the October 28, 1973, killing of 11 year old Jonathan Kushner. Witt, then 30 years old, was bow and arrow hunting with his younger friend, Gary Tillman. The two apparently had spoken about killing a human on other occasions and even had stalked persons like animal prey.

On the day of the murder, Witt and Tillman were hunting in a wooded area near a trail often used by children. Tillman apparently struck the victim, who was riding his bicycle along a path through the area, on the head with a star bit from a drill. At that point, Will assisted Tillman in gagging Kushner and placing him in the trunk of Witt's car. Petitioner and Tillman then drove to a deserted grove and opened the car trunk. The victim was dead, as a result of suffocating from the gag. The two dug a grave for the Kushner boy and then slit his stomach so it would not bloat. Before burying the victim, Witt and Tillman performed various acts of sexual perversion and violence to Kushner's body.

Defendant was found guilty of first degree murder, Fla.Stat.Ann. 782.04(1) (West Supp.1982), after a jury trial. On February 21, 1974, Witt was sentenced to death, in accordance with the jury's recommendation, by the Circuit Court for the Seventh Judicial District for Volusia County, Florida. The Florida Supreme Court affirmed that decision on direct review. Witt v. State, 342 So.2d 497 (Fla.), cert. denied 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294, reh. denied 434 U.S. 1026, 98 S. Ct. 755, 54 L. Ed. 2d 774 (1977). Petitioner then moved to vacate, set aside, or correct the sentence under Fla.R.Crim.P. 3.850. His motion was denied. The Florida Supreme Court affirmed this decision. Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 612 (1980).

Petitioner sought federal habeas relief from the United States District Court for the Middle District of Florida. That court denied Witt's petition initially and, after an evidentiary hearing on the Witherspoon issue, affirmed its prior memorandum decision. Petitioner filed a notice of appeal on June 24, 1981. After hearing oral argument in this case, we deferred consideration pending the decision in this Court's en banc case, Ford v. Strickland, 676 F.2d 434 (11th Cir.1983), which addresses several issues we face here. We now proceed to a consideration of Witt's claims.


Petitioner was arrested during the afternoon of November 5, 1973. The district court found the following sequence of events transpired. Witt was given the standard Miranda warning and brought to the county jail where he was interrogated simultaneously by sheriff's deputies, an FBI agent, and an assistant state prosecutor. Petitioner requested an attorney soon after the questioning began. The interrogation at that point properly ceased.

Witt was left in the interrogation room under the custody of Lt. Arnie Myers of the Hillsborough County Sheriff's Department. Lt. Myers testified that petitioner began to complain about the interrogation. Myers claims he cut off Witt's discussion by informing Witt that he was not authorized to discuss the Kushner case. Witt apparently then asked Myers if all of the sheriff's murder cases were solved, and Myers responded by asking which case Witt had in mind. Witt told Myers that Tillman, his co-defendant, possibly had information on the murder of a young girl named Gail Joyner. Myers' interest was piqued because he was working on the Joyner investigation at the time. Soon after the statement, officers arrived to take Witt to his prison cell for the night. Myers testified that Witt said he would like to continue their discussion the next day, presumably referring to the Joyner case.

On the next day, November 6, Witt had his first appearance before a county judge. Witt was represented by an attorney from the public defenders' office. It is unclear, however, whether petitioner actually consulted with the attorney, even though he requested such an opportunity. On November 7, Myers went to Witt's cell in the early morning to continue their discussion from two days previously. On the way to the interrogation room, Myers read petitioner his rights in accordance with routine police procedures.

Upon arriving at the interrogation room, Witt asked Myers if he had spoken to Tillman yet. Myers responded that he had not, but that someone else had. Witt then asked what Tillman said, to which Myers answered he did not know. Petitioner then was silent for awhile, according to Myers, until he stated that he co-defendant would probably attempt to pin the blame upon him, apparently referring to the Kushner, and not the Joyner, case.

Witt asked Myers for paper and pen, which Myers provided, along with a waiver of rights form. Myers read this waiver form and asked Witt if he understood its contents; Witt responded affirmatively. Myers testified that reading the waiver form was routine police procedure when giving a prisoner writing materials during a questioning session. Witt then wrote out a 13 page confession over the course of several hours. Agent Fred Barnesdale, also of the Hillsborough County Sheriff's Department, joined Myers at some point while Witt was writing his confession. Barnesdale asked Witt several questions that secured Witt's cooperation in revealing the locations of various aspects of the crime. Witt also tendered an oral confession during the course of November 7. Petitioner's motion to suppress his confession was denied by the trial court on February 12, 1974.

Petitioner contends that his confession was extracted in violation of the constitutional principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Petitioner argues that the waiver of his right to counsel, while perhaps voluntary, was not intelligent and knowing. He urges that the initiation by te police of further custodial interrogation after he had unambiguously expressed his desire to consult with an attorney constituted improper coercion. Petitioner concludes that his confession and all evidence stemming from it was inadmissible as violative of his Fifth Amendment right against self-discrimination and his Sixth Amendment right to counsel.

In Miranda, the United States Supreme Court made it clear that the government must show by a "heavy burden" that a waiver of these constitutional rights was voluntary, knowing, and intelligent. 384 U.S. at 475, 86 S. Ct. at 1628. The Miranda doctrine requires that:

An uncounseled confession may not be introduced into evidence against a criminal defendant unless the government can sustain its "heavy burden" of proving that the defendant has waived his right against self-incrimination and his concomitant right to the presence of counsel and that his waiver was "voluntary, knowing and intelligent."

Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc), quoting Miranda, 384 U.S. at 475, 865 S. Ct. at 1628. In Edwards, the Court clarified the rights of an accused person held in custody who has expressed his or her desire to speak with an attorney. The Court stated:

[A]n accused . . ., having expressed his desire to deal with the police only through counsel, is not subject to further investigation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S. Ct. at 1885.

The district court originally relied upon the state court's finding that Witt expressed his desire to confess during a "casual conversation" in his cell on the morning of November 7. Soon after the district court entered its initial memorandum decision, the Supreme Court issued Edwards v. Arizona. The district court commendably decided to hold an evidentiary hearing on the Miranda issue, in light of Edwards, and reconsidered its initial decision. The court frankly admitted that there was scant record support for the state court's conclusion, upon which the district court had relied. The district court concluded, however, that Witt initiated further contacts with the police after his request for an attorney and that his Fifth and Sixth Amendment rights were therefore not violated.

We find, at the outset of our analysis, that there is no merit to the State's argument that petitioner's right to an attorney had not yet attached at the stage of custodial interrogation being challenged. Petitioner indisputably was entitled to the assistance of counsel after his first appearance before the county judge on November 6. See Brewer v. Williams, 430 U.S. 387, 388-89, 97 S. Ct. 1232, 1234-1235, 51 L. Ed. 2d 424 (1977).*fn1

The district court's finding that petitioner made a voluntary, knowing, and intelligent waiver of his right to counsel before his confession depended on credibility choices. Witt's testimony conflicted dramatically with that of Myers. The court explicitly credited Myers' testimony. This decision is binding upon our Court absent clear error. Based upon a consideration of the totality of the circumstances surrounding petitioner's confesion, we conclude that there is sufficient evidence on the record to support the district court's determination of the confession's admissibility.

Testimony at the federal habeas evidentiary hearing indicates that Witt initiated the November 5 dicussion with Myers about the Joyner case. The testimony also supports the conclusion that Myers initiated the discussion on the morning of November 7 to follow-up their discussion of two days earlier, at Witt's invitation, and with the genuine belief that Witt intended to discuss the Joyner investigation and not the murder involved in this action.*fn2 Therefore, Myers' questioning of Witt on November 7 was not impermissible.

The record also fairly supports the conclusion that it was petitioner who initiated discussion of the Kushner case on November 7. Myers read Witt his rights in accordance with routine police procedure. Witt decided to confess on his own, with no apparent prompting or coercion by the police, and only after he had been informed of his rights two times, the second with every indication of careful regad for Witt's genuine understanding. The introduction of quetions by Agent Barnesdale about the location of certain acts of the crime did not result in any qualitative difference in petitioner's custodial interrogation. We do not find that Barnesdale extended the subject matter of inquiry beyong those categories already broached by petitioner's voluntary acts.

We are unable to conclude, as petitioner suggests, that the Hillsborough police ignored Witt's repeated requests for an attorney. The record clearly indicates otherwise. Nor do we find that the police so wore petitioner down, through various pressure tactcs and lack of sleep, that his confession was for all practical purposes coerced. The only support for these allegations comes from the testimony of petitioner himself, which the district court found as undeserving of credence. There is no reliable evidence of bad faith in Witt's treatment by the police.*fn3

In sum, we conclude that the district court did not err in concluding that petitioner knowingly, intelligently, and voluntarily waived his right to an attorney and his privilege against self-incrimination. Lt. Myers merely followed up on a line of inquiry opened up by Witt himself. Witt later chose, albeit unwisely from his perspective, to extend his discussions with Myers beyond the initial subject matter to encompass the murder of the Kushner child. No constitutional principles are violated by the admission into evidence of petitioner's confession.


Petitioner argues that the Florida Supreme Court relied on non-record information, such as psychiatric and pre-sentence investigation reports, in the direct review of his conviction and sentencing. Petitioner claims that this practice infringed on his constitutional guarantees including the right to due process of law, the effective assistance of counsel, confrontation, freedom from cruel and unusual punishment, and the protection against compelled self-incrimination.*fn4 He argues that the use of this material runs afoul of the principles of Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (petitioner was denied due process when death sentence was imposed, at least in part, on the basis of information that he had no opportunity to deny or explain).

The en banc court in Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc), denied an identical claim in that action. The Ford court relied upon the Florida Supreme Court's opinion in Brown v. Wainwright, 392 So.2d 1327 cert. denied, 454 U.S. 1000, 102 S. Ct. 542, 70 L. Ed. 2d 407 (1981),*fn5 to conclude that:

Even if members of the [Florida Supreme C]court solicited the material with the thought that it should, would or might be used in the review of capital sentences, the decision of the Florida court that it should not be so used, the statement that it was not used, and the rejection of the notion that it affected the judgment of the court ends the matter when addressed at the constitutional level.

Ford v. Strickland, 696 F.2d 811. Due to the absence of any indication contrary to the above statement in the instant action, we must deny petitioner's Brown claim.


After reviewing petitioner's military medical records and reports from two court-appointed psychiatrists who examined petitioner, the trial court determined on January 8, 1974, that Witt was competent to stand trial. The court-appointed psychiatrists examined petitioner without warning him that anything he said could be used against him in court. One of the psychiatrists, however, informed Witt that he had a choice whether to submit to the examination. The psychiatrists later testified, during the penalty phase of petitioner's trial, that Witt had an incurable propensity to commit future violent crimes, that he was a menace to society, and that he was a sexual pervert. The trial judge explicity relied on some of these factors in reaching his sentencing decision.

Petitioner argues that his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel were violated by use of this psychiatric testimony where the psychiatrist failed to warn petitioner that the results of the examination would be used against him in court and that he had the right to remain silent. After the district court issued its decision in this case, but before petitioner's motion to alter, amend, or set aside the judgment, the Supreme Court issued its decision in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981). In Smith, the Court squarely held that use of such psychiatric testimony, secured without adequate warnings to the defendant in the context of a limited and neutral competency examination, constitutes a violation of that defendant's Fifth and Sixth Amendment rights when used by the state during the sentencing phase.

Were petitioner's claims so straightforward, we would not hesitate to find Smith controlling. The district court, however, identified three distinctions between Smith and the instant action.First, the evidence adduced was not probative as to any of the statutory aggravating circumstances the sentencer was entitled to consider, as was the evidence in Smith under Texas law. Second, the defendant, rather than the trial judge, requested the competency examination. Third, the defendant allowed the psychiatrist to testify for his own tactical reasons and thereby waived any objection to such testimony.

It is irrelevant who actually requested the examination, where it was conducted for the limited purpose of assessing petitioner's competency to stand trial. Also, whether the psychiatric evidence adduced at the sentencing phase supported a proper statutory aggravating circumstances or not, the fact remains that this prejudical information was still considered. Despite these areas of disagreement with the district court's decision, we affirm the district court's disposition of this issue. Petitioner's trial attorney did not object to introduction of the psychiatric evidence. Testimony by Witt's attorney clearly indicates that petitioner would have called the psychiatrist to testify during the sentencing phase of his trial had the state failed to do so. Petitioner's failure to object was purely tactical and did not, as Witt suggests, result from his unawareness that the state would use such evidence or from his improper assessment of how damaging the testimony would ultimately prove to be.

The Supreme Court in Smith recognized that the rule there stated should not invalidate sentences such as the one in this case. The Court noted that, "a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase. . . ." 451 U.S. at 1472, 101 S. Ct. at 1878. Since petitioner is unable to show cause to qualify for exception from the procedural default bar of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), we find that Witt has failed to state a meritorious Smith claim.


Perhaps the most difficult issue petitioner raises is his claim that the trial court improperly relied upon four non-statutory aggravating circumstances in reaching its sentencing determination. Petitioner urges that two distinct problems result from this reliance. First, several of the non-statutory aggravating circumstances by themselves are arguably constitutionally impermissible bases for a sentence of death. See Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 645 L. Ed. 2d 398 (1980). Second, according to petitioner, the use of non-statutory aggravating circumstances results in an unconstitutionally broad degree of sentencer discretion, thus raising the same concerns which convinced the Supreme Court to strike down the death penalty in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

The trial court found four aggravating circumstances in support of the sentence of death:

(A) That the Defendant, Johnny Paul Witt, murdered Jonathan Mark Kushner from a premeditated design and while engaged in the commission of a felony, to wit: Kidnapping.

(B) That the Defendant, Johnny Paul Witt, has the propensity to commit the crime for which he was convicted; to wit: Murder in the First Degree and thus his continued existence [sic] presents a great risk of death to many persons.

(C) That the murder, kidnapping of Jonathan Mark Kushner by the Defendant, John Paul Witt, was especially heinous, atrocious and cruel.

(D) That the Defendant knowingly through his voluntary and intentional acts leading up to and during the course of the commission of the offense for which he was convicted created a great risk of serious bodily harm and death to many persons.

In addition the trial judge made the following statement at the end of his findings:

Therefore, it is the Opinion and Determination of the Court, and the Court so finds, tha the aggravating circumstances far outweigh the mitigating circumstances [sic] in this cause, and the testimony of these psychiatrists indicate that the Defendant, Johnny Paul Witt, is a menace to society as his past actions have indicated beyond doubt. In addition, the psychiatrists could give no promise of rehabilitation for the Defendant.

Petitioner argues that, of the four aggravating circumstances recited by the trial judge, only the first, dealing with the commission of a felony, is permissible under Florida law. He refers to various Florida cases in which that state's Supreme Court has held improper and at times unconstitutional the consideration of the other aggravating circumstances upon which the trial court relied.*fn6

The State advances the argument in our court that a reviewing court should uphold a death sentence so long as the trial court stated its reliance on at least a single permissible statutory aggravating circumstance.This argument implies an irrebuttable presumption that the trial judge would have ruled in favor of a sentence of death even absent the impermissible aggravating circumstances. We note in passing that the state's position does little to clarify the proper scope of petitioner's constitutional claim*fn7 or the proper role of a federal habeas court in reviewing the specific alleged constitutional infirmitites of petitioner's conviction that are raised by this issue.

The district court was unpersuaded by petitioner's arguments in this regard. The court found that the sentencing judge explicitly found two proper aggravating circumstances and only one mitigating circumstance, petitioner's age, which was of minor significance. The district court reasoned that petitioner's case was dissimilar to Elledge v. State, 346 So.2d 998 (Fla.1977), where the Florida Supreme Court ordered resentencing when the trial judge relied on improper non-statutory aggravating circumstances, but rather was controlled on the facts by Brown v. State, 381 So.2d 690 (Fla.1980). In Brown, the trial judge also found at least two properly established statutory aggravating circumstances and only the mitigating circumstances of age.The Florida Supreme Court concluded that, "[t]he weighing process has not been compromised" where the court found, from the circumstances, that it "can know" that the result of the weighing process would not have been different had the impermissible factors not been present.

Our problem with this disposition is, quite simply, in fathoming just how a reviewing court goes about "knowing," with any degree of certainty adequate to meet the "reasoned judgment" test applicable to capital cases, those factors a jury or a trial judge would find persuasive in deciding between life and death. In this instance, we do not hesitate to disparage our own ability to "know" about such complex and profound issues of sentencing in capital cases. Nonetheless, we put aside these concerns pending the Supreme Court's resolution of these issues in Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reh. denied and modified, 648 F.2d 446 (5th Cir.1981), certified to Georgia Supreme Court for clarification, 456 U.S. 410, 102 S. Ct. 1856, 72 L. Ed. 2d 222 (1982), and Barclay v. Florida, 411 So.2d 1310 (Fla.), cert. granted, U.S., 103 S. Ct. 340, 74 L. Ed. 2d 382 (1982) (argued March 30, 1983).

In Stephens, the Supreme Court is faced with the issue of whether a death sentence must be set aside where it has been imposed based upon a plurality of aggravating circumstances, each of which has been established beyond a reasonable doubt, but one of which was set aside.The Court has certified to the Georgia Supreme Court the following question: "What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstnces found by the jury?" In Barclay, the Court must determine whether a sentence of death should be set aside where it was based on a plurality of aggravating circumstances, of which three are invalid and one is not encompassed within the statute.

Because the Supreme Court will most likely determine the issues raised by this portion of Witt's petition, we decline to dispose of this issue on the merits in the instant action.*fn8 Moreover, because petitioner, due to our disposition of the Witherspoon claim, infra, deserves resentencing before a court that now should be sensitized to the problems inherent in a determination based upon non-statutory aggravating circumstances, it is unnecessary for us to reach this issue and petitioner suffers no prejudice thereby.*fn9


During the jury selection at petitioner's trial, the court excused 11 venirepersons for cause because they expressed opposition to the death penalty. Petitioner urges that three of these dismissals were unconstitutional under the standards set forth by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).*fn10

In Witherspoon, the Supreme Court acknowledged that a capital defendant's right to an impartial jury under the Sixth and Fourteenth Amendments is jeopardized by the removal of jurors who merely express their distaste for or philosophical opposition to the death penalty. A jury constituted of only those remaining after such excusals would be a jury "uncommonly willing to condemn a man to die." Witherspoon, 391 U.S. at 521, 88 S. Ct. at 1776. Yet the Court recognized the necessity of excusing for cause those propspective jurors who, because of their lack of impartiality from holding unusually strong views against the death penalty, would frustrate a state's legitimate effort to administer an otherwise constitutionally valid death penalty scheme. The Court resolved these conflicting principles by permitting 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 unmistakeably 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.

Witherspoon, 391 U.S. at 522, n. 21, 88 S. Ct. at 1777, n. 21 (emphasis in original).

The Court, in explaining this test, has indicated a prospective juror must be permitted great leeway in expressing opposition to the death penalty before he or she qualifies for dismissal for cause. A prospective juror may even concede that his or her feelings about the death penalty would possibly color an objective determination of the facts of a case without admitting of the necessary partiality to justify excusal. The Court has stated:

Nor [does] the Constitution permit the exclusion of jurors from the penalty phase of a . . . murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced, beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by thie views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.

Adams, 448 U.S. at 50, 100 S. Ct. at 2529 (emphasis added).

In the instant action, petitioner challenges the excusal of venirepersons Colby, Gehm, and Miller as unjustified under the Witherspoon standard. The relevant portions of the voir dire of these jurors indicate that the inquiry of prospective juror Colby arguably adduced to least certain statement of inability to follow the law as instructed. Because we are compelled to reverse petitioner's sentence, if we find a Witherspoon violation with respect to a single prospective juror,*fn11 we shall limit our consideration to the dismissal of Ms. Colby, the most persuasive instance of a Witherspoon violation of the three excusals cited by petitioner.*fn12

The following voir dire led to prospective juror Colby's dismissal:

Mr. Plowman [for the State]: Now, let me ask you a question, ma'am. Do you have any religious beliefs or personal beliefs against the death penalty?

Ms. Colby: I am afraid personally but not --

Mr. Plowman: Speak up, please.

Ms. Colby: I am afraid of being a little personal, but definitely not religious.

Mr. Plowman: Now, would that interfere with you sitting as a juror in this case?

Ms. Colby: I am afraid it would.

Mr. Plowman: You are afraid it would?

Mr. Colby: yes, sir.

Mr. Plowman: Would it interfere with judging the guilt or innocence of the defendant in this case?

Ms. Colby: I think so.

Mr. Plowman: You think it would?

Ms. Colby: I think it would.

Mr. Plowman:

Your Honor, I would move for cause at this point.

THE COURT: All right.Step down.

Prospective juror Colby's responses are limited to expressions of her feelings and her thoughts on the subject of inflicting the death penalty. At no point did she unequivocally state that she would automatically be unable to apply the death penalty or to find petitioner guilty if the facts so indicated. Her statements fall far short of the certainty required by Witherspoon to justify for cause excusal. Perhaps her responses are so devoid of the necessary certainty because of the State's failure to frame its questions in an appropriately unambiguous manner. The State inquired whether Ms. Colby's fears about applying the death penalty would "interfere" with her sitting as a juror in petitioner's case without ever attempting to directly ask those questions the Witherspoon standard seems to require.The word "interfere" admits of a great variety of interpretations, and we would find it quite unnatural for a person, who has already expressed her concern about the death penalty, to respond otherwise than that her feelings would "interfere" with, "color," or "affect" her determinations. Such a response does not indicate an inability, in all cases, to apply the death sentence or to find the defendant guilty where such a finding could lead to capital punishment because it fails to reflect the profundity of any such "interference." We therefore find that venireperson Colby was improperly excused for cause and that petitioner is entitled to be resentenced as a result of this violation of his constitutional rights.*fn13

The reversal of petitioner's sentence on the basis of venireperson Colby's excusal is mandated by two cases from this Circuit of notable factual similarity. In Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981), the Court evaluated a voir dire in which the propspective juror was asked if he could ever vote to inflict the death penalty. He replied, "No, I don't think I could." Then, in response to the question, "You just don't feel like you would be entitled to take another person's life in that fashion?" He nodded and then said, "No, I could not." The Court found that, "[t]hese questions and aswers fall far short of an affirmation by [the prospective juror] that he would automatically vote against the death penalty regardless of the evidence, or that his objections to capital punishment would prevent him from making an impartial decision as to guilt." 655 F.2d at 677. Similarly, in Burns v. Estelle, 626 F.2d 396 (5th Cir.1980), the former Fifth Circuit en banc found that the Witherspoon test was not met where a prospective juror merely acknowledged that the presence of the death penalty would "affect" her deliberations. These cases turn on facts substantially similar to both types of answers provided by Ms. Colby: first, where she expressed her thoughts and feelings about imposing the death penalty; and second, where she admitted that these reservations would impose some level of "interference" with her role as an impartial juror. These cases control our decision that the trial judge erred in excusing Colby for cause. See also McCorquodale v. Balkcom, 705 F.2d 1553 at 1560 (11th Cir.1983) (improper excusal under Witherspoon of a prospective juror who simply stated she did not "think" she could vote for the death penalty and was then excused without further questioning, no mention being made of whether she would automatically vote against a sentence of death a finding of guilt regardless of the evidence.*fn14

The State forwards three substantive arguments counseling against a finding of a constitutional violation on these facts. First, appellees claim that any improper excusal was harmless error because the State used only two of its 10 available peremptory challenges. The State suggests it would have challenged juror Colby even if the court failed to remove her for cause. Appellees attempt to distinguish the panel opinion in Burns v. Estelle, 592 F.2d 1297 (5th Cir.1979), on the facts. In Burns, the Court refused to find harmless error where the State had used 13 of 15 peremptory challenges and the petitioner challenged the excusal of four of the prospective jurors. Despite these differences in numbers, the State's argument that there is constitutional significance to the fact that some peremptory challenges remained after the jury was selected must fail under the holding of Davis v. Georgia, 429 U.S. 122, 123, 97 S. Ct. 399, 400, 50 L. Ed. 2d 339 (1976) (per curiam) (the improper exclusion of even one out of 83 veniremembers was grounds for reversal of a death sentence). Hance v. Zant, 696 F.2d at 956.

The State's second argument is that the Granviel case, upon which we rely, is factually distinguishable because the venireperson there was asked only about his inability to sentence to death, whereas here the prospective juror was also asked about the effect of her conscientious scruples upon her ability to determine impartially petitioner's guilt or innocence. This argument is unpersuasive because the court's decision in Granviel turned upon the ambiguity of the venireperson's answers, which were virtually identical to those in this case, and not upon the failure to inquire about the effect of his views on the guilt phase of the trial.

Appellees finally urge that this Court avoid imposing the de facto requirement that prosecutors ask each prospective juror certain standard questions and receive "talismanic" answers before excusal for cause may be justified. Appellees also argue that we should refrain from following the Granviel case to the extent that it imposes a per se rule that a prospective juror's use of the term "I think," even when taken out of context, constitutes inadequate grounds for excusal. We agree that so such rule exists in this Circuit. In our reading of Granviel, we find no indication that the Court considered the prospective juror's use of the phrase "I think" as anything but a part of the total circumstances of the voir dire, although a justifiably important part. The decision in this appeal likewise countenances of the voir dire and 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.


We therefore affirm the district court's decision with respect to the first three issues evaluated on this appeal and vacate its decision on the fourth issue. We reverse the district court's decision on the Witherspoon issue and remand to that court for further proceedings not inconsistent with this opinion.


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