714 F.

2d 1069

Johnny Paul WITT, Petitioner,

v.
Louie L. WAINWRIGHT, etc., et al., Respondents.
No. 81-5750.

United States Court of Appeals,

Eleventh Circuit.
Sept. 16, 1983.
As Amended on Denial of Rehearing and Rehearing En Banc Jan.
4, 1984.*

William C. McLain, Asst. Public Defender, Tenth Judicial Circuit,

Bartow, Fla., for petitioner.
Robert J. Landry, Asst. Atty. Gen., Tampa, Fla., for respondents.
Appeal from the United States District Court for the Middle District of
Florida.
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 four 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.
I. BACKGROUND

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, Witt 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, 696 F.2d 804 (11th
Cir.1983), which addresses several issues we face here. We now proceed to a
consideration of Witt's claims.
7

II. THE MIRANDA ISSUE--ADMISSIBILITY OF PETITIONER'S

CONFESSION

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.

10

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.

11

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 his
co-defendant would probably attempt to pin the blame upon him, apparently
referring to the Kushner, and not the Joyner, case.
12

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.

13

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 the 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 were inadmissible as violative of his Fifth Amendment right
against self-incrimination and his Sixth Amendment right to counsel.

14

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:

15 uncounseled confession may not be introduced into evidence against a criminal

An
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."
16

Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc), quoting Miranda, 384
U.S. at 475, 86 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:
17 accused ..., having expressed his desire to deal with the police only through
[A]n
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.
18

451 U.S. at 484-85, 101 S.Ct. at 1884-85.

19

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.

20

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,
1234-35, 51 L.Ed.2d 424 (1977). 1

21

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 confession, we conclude that there is
sufficient evidence on the record to support the district court's determination of
the confession's admissibility.

22

Testimony at the federal habeas evidentiary hearing indicates that Witt initiated
the November 5 discussion 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.2 Therefore, Myers'
questioning of Witt on November 7 was not impermissible.
23

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 regard for Witt's genuine understanding. The introduction of
questions 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 beyond
those categories already broached by petitioner's voluntary acts.

24

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 tactics 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.3

25

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.

26

III. THE BROWN ISSUE--NON-RECORD MATERIAL BEFORE THE

REVIEWING COURT

27

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 selfincrimination.4 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).
28

The en banc court in Ford v. Strickland, 696 F.2d 804 (11th Cir. Jan. 7, 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),5 to
conclude that:

29

Even if members of the [Florida Supreme C]ourt 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.

30

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

31

IV. THE SMITH ISSUE--ADMISSIBILITY OF PENALTY PHASE

PSYCHIATRIC TESTIMONY

32

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 psychiatrist 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 explicitly relied on some of these factors in reaching his sentencing
decision.

33

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.
34

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.

35

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 circumstance or not, the fact remains that this
prejudicial 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.

36

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 472, 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.

37

V. CONSIDERATION OF NON-STATUTORY AGGRAVATING

CIRCUMSTANCES

38

This issue has now been decided adversely to Witt by the Supreme Court in
Wainwright v. Goode, --- U.S. ----, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983).

39

VI. THE WITHERSPOON ISSUE--PROPRIETY OF PROSPECTIVE

JURORS' EXCUSAL FOR CAUSE

40

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).6

41

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 prospective
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:

42
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.
43

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

original).

44

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:
45 [does] the Constitution permit the exclusion of jurors from the penalty phase of
Nor
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 their 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.
46

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

47

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 the 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,7 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.8

48

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

49 Plowman [for the State]: Now, let me ask you a question, ma'am. Do you have
Mr.
any religious beliefs or personal beliefs against the death penalty?
Ms. Colby: I am afraid personally but not-50
Mr. Plowman: Speak up, please.
51
Ms. Colby: I am afraid of being a little personal, but definitely not religious.
52
Mr. Plowman: Now, would that interfere with you sitting as a juror in this case?
53
Ms. Colby: I am afraid it would.
54
Mr. Plowman: You are afraid it would?
55

Ms. Colby: Yes, sir.

56
57 Plowman: Would it interfere with judging the guilt or innocence of the
Mr.
defendant in this case?
Ms. Colby: I think so.
58
Mr. Plowman: You think it would?
59
Ms. Colby: I think it would.
60
Mr. Plowman: Your Honor, I would move for cause at this point.
61
THE COURT: All right. Step down.
62
63

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.9

64

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 prospective 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 answers 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 (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.10
65

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.

66

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, while we are bound by Granviel as to the first prong of
the inquiry, Burns controls our determination as to the second--that is whether
Mrs. Colby's beliefs would "prevent" her "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). As discussed above, Mrs. Colby's "thinking" her
belief would "interfere with judging guilt or innocence" does not change the
posture of the case in favor of the disqualification. Burns v. Estelle, supra at

398.
67

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 no 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 a review of the totality of the circumstances 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.
VII. CONCLUSION

68

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

69

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

70

RONEY, Circuit Judge, specially concurring.

71

Since I am not prepared to agree that this Court's decision in Goode v.

Wainwright, 704 F.2d 593 (11th Cir.1983) retains its viability in light of
Stephens v. Zant, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and
Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), I
concur only in the result reached by the Court. Since this case is
distinguishable from Goode, it matters not to this decision how these Supreme
Court decisions may have detracted from the Goode analysis.

72

Although I doubt the soundness of the analysis which leads to the reversal
under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968), I recognize the Court's attempt to faithfully follow the decisions in this
Circuit which, although questionable, guide that analysis and I therefore do not
dissent.

Opinion denying rehearing and correcting opinion, 723 F.2d 769

It is unnecessary, for the disposition of this issue, for us to consider petitioner's

right to counsel on November 5, although we are inclined to believe that the
guarantees acknowledged in Brewer should be afforded to petitioner on that
date as well

Myers' testimony in this regard, on direct examination, was as follows:

Q: So he asked you to come back and visit him the next day so he could
conclude his discussion about the Joyner case?
A: Yes sir.
***
Q: Okay. Now at the conclusion of that meeting on November 5, was it Mr.
Witt who suggested that you come back and talk to him some more about the
Joyner case?
A: Yes.
***
Q: Now, what was your purpose for going to see Mr. Witt on November 7?
A: I felt pretty certain that he would do what he said and help me on the Gail
Joyner case, and I felt that with the information that he could provide, I could
subsequently talk to Mr. Tillman and shed some light on the Gail Joyner case.
Myers testified on cross-examination as follows:
Q: And I believe you testified that he asked you to come back to talk to you
again, not about the Kushner case, but about the Joyner case; is that correct?
A: He didn't specify. He just said--we ended up talking about Gail Joyner, and
he said, "Come get me tomorrow; we can finish this conversation."
Q: But it was your belief he wanted to talk about the Joyner case?
A: Yes sir.
The state offered into evidence at the evidentiary hearing a "Continuation

Report" written by Lt. Myers on November 5, shortly after his first encounter
with petitioner. That report materially contradicts Myers' version of the facts as
recounted during his oral testimony. Myers wrote:
I sat silently, suddenly Mr. Johnny Paul Witt related that he find [sic] it difficult
to talk to police officers. He qualified that statement by saying: "I don't have
that problem with someone like you" "from an oppressed group." [Lt. Myers is
a black male]. I again advised Johnny Witt that I didn't want to question him in
reference to the Kushner case. I stated that if he wanted to talk with someone I
would get the officer who originated this report back into the interrogation
room, he said no I don't trust them, etc. I advised Johnny Witt that I didn't know
much about it, the disappearance of Jonathon [sic] Kushner. We were silent
again for a short period when Johnny Witt broke the silence by asking; "have
yau'll [sic] solved all your murder cases?", I said, "which one do you have in
mind?" At this point I suggested to Johnny Witt that if there was something he
wanted to talk about to wait until after he had first talked with his attorney. He
stated he didn't have any money, I told him the courts would appoint one free,
without cost. At this point I went through the complete procedure
(constitutional rights) based on the Mirander [sic] decision. Johnny Witt stated
that if I had just one more day, I would have turned myself in. He interrupted
his school of thought by saying "maybe Gary can tell you something about
these unsolved murders, I would like to help you. [sic] I stated that I didn't
know of any [sic] he asked, "what about the girl with the raccoon" [the Joyner
case]. I said, do [sic] Gary know about that?" He stated, "ask him, he probably
do" [sic].
I stated to Mr. Witt that I would talk to Gary Tillman whenever I got the
opportunity. I asked Mr. Johnny Witt has he hunted in the area before, this was
in reference to where Jonathon [sic] Kushner disappeared. ... Johnny Witt stated
he was out there approx. two weeks prior to the Kushner deal. I asked him was
there any kids out there playing, he said yes, in fact, I ran a little girl away from
the area I was in, I told her she might get hurt, to leave. I asked him was he
alone, he stated that he was, and that he was driving a yellow car. At this point
he asked for more coffee, and I responded as I had earlier. When I returned with
the coffee Johnny Witt stated he couldn't think very well, but would talk with
me later. At this point our conversation terminated. (Emphasis added).
This account of Myers' first encounter with Witt indicates that it was Myers
who initiated the discussion of the murder in the instant action, after Witt had
requested an attorney.
We cannot escape the fact that the district court had this testimony before it
when it rendered its opinion. The court chose to credit Myers' oral testimony in

reconstructing the facts surrounding Witt's confession. Since there is substantial

support on the record for the district court's account of the facts, we are unable
to find that the district court clearly erred in this regard. The result of this
conclusion is that Myers' written Continuation Report has no bearing on our
Miranda analysis.
3

There is no indication here that the repeated recitation of Miranda warnings, in

the face of Witt's unambiguous and repeated requests for an attorney, was
anything but routine police procedure designed to comply with constitutional
dictates

Petitioner alleges violations of his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights

Brown v. Wainwright was a direct petition for writ of habeas corpus by 123
Florida death row inmates alleging the same facts of the solicitation of nonrecord materials during the pendency of their capital case appeals. The Florida
Supreme Court denied class relief

The Witherspoon standards are applied to bifurcated death penalty trials of the
type in this action in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d
581 (1980)

Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976)

Prospective juror Gehm engaged in the following colloquy on voir dire:

Mr. Plowman: I am asking you [to] consider ... aggravating circumstances ...
would you be able to follow that and come back with a death penalty
conviction?
***
Mr. Gehn: I am afraid not, sir.
Mr. Plowman: You would not be able to do so?
Mr. Gehm: My religious convictions would be foremost in my mind up to this
point and possibly beyond that.
Mr. Plowman: Okay.
Mr. Gehm: I am afraid I would be unable to.
***

Mr. Behuniak [for petitioner]: I am saying if you were to return a verdict of

guilty of first-degree murder, could you keep an open mind as to whether you
should vote for the death penalty or life?
Mr. Gehn: No, I could not.
Mr. Behuniak: Why is that, sir?
Mr. Gehm: I feel that the Almighty is the Judge of life or death.
Mr. Behuniak: That's right. You said that previously. But you would not let it
interfere with your determination?
Mr. Gehm: I am afraid that it would be weighing on my mind during the trial.
Mr. Plowman: Your Honor, the state would move to dismiss for cause at this
time.
The Court: Do you think that this state of mind will prevent you from acting
with impartiality? Do you reel that the state of mind that you have will prevent
you from acting with impartiality? What I am saying is-Mr. Gehm: I am afraid it might, sir.
The Court: You are afraid so?
Mr. Gehm: I am afraid it might, sir.
The Court: Okay. Step down.
The statement by venireperson Gehm, that he "could not" keep an open mind in
sentencing, is far less equivocal than any responses proffered by Ms. Colby.
Prospective juror Miller responded to questions on his views about the death
penalty as follows:
Mr. Plowman: Okay. Did you hear the discussion that we have had just
recently with Mrs. Davis regarding the death penalty?
Mr. Miller: That's right.
Mr. Plowman: Okay. Do you have any strong feelings one way or the other
regarding the death penalty?
Mr. Miller: Well I just couldn't bring a--I couldn't vote, I guess, well, I am

against the death penalty.

Mr. Plowman: You are against the death penalty? Would that interfere with
your determination in this case?
Mr. Miller: I think it would.
Mr. Plowman: Okay. And you wouldn't be able to follow the law as instructed
by the Court?
Mr. Miller: When it comes down to a death verdict, I wouldn't.
Mr. Plowman: You could not do it. Okay. Regardless of the law?
Mr. Miller: No, sir.
Mr. Plowman: Okay. Your Honor, the State would move the Court to excuse
Mr. Miller for cause.
The Court: Do you feel because of your state of mind regarding that particular
situation it would make you unable to render a just and fair verdict in this case?
Mr. Miller: I am against the death verdict. I think it would.
The Court: Step down.
Prospective juror Miller as well offered less ambiguous responses than Ms.
Colby and did not merely engage in a discussion of his feelings. He quite firmly
indicated that he "wouldn't" be able to follow the law as instructed by the court
and that he "could not" register a vote for the death penalty, "regardless of the
law."
We therefore limit our consideration to the responses provided by prospective
juror Colby and do not reach the question of the constitutionality of the for
cause excusals of Gehm and Miller.
9

Appellees urge us to dismiss petitioner's claim on procedural grounds. The state

argues that Witt waived his right to bring this claim in federal habeas court,
under Sykes, by failing to object at trial. Appellees invite our attention to
Paramore v. State, 229 So.2d 855 (Fla.1969), vacated on other grounds, 408
U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972), which they claim establishes a
state rule requiring a defendant to indicate his or her desire to keep a challenged
juror and to attempt to "qualify" that juror during the voir dire
The Sykes procedural bar is inapplicable to petitioner's claim because the fact

that the Florida Supreme Court on direct appeal considered appellant's

Witherspoon claim on the merits, Witt v. State, 342 So.2d at 499, establishes
the absence of a state contemporaneous objection rule prohibiting consideration
of the propriety of a juror's excusal for cause where an objection was not
registered during the trial proceedings. See Henry v. Wainwright, 686 F.2d 311,
313 (5th Cir. Unit B) ("If Florida law dealt with the merits of Henry's objection,
whether or not there was a procedural default at trial under state law, then a
federal habeas court must also determine the merits of the claim. Lefkowitz v.
Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43 L.Ed.2d 196
(1975); Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied, 444 U.S.
868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979)."), petition for cert. filed, No. 82-840
(Nov. 17, 1982); Moran v. Estelle, 607 F.2d 1140 (5th Cir.1979). Also see
County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213,
2223, 60 L.Ed.2d 777 (1979) (when the state courts do not indicate that a
"federal constitutional claim is barred by some state procedural rule, a federal
court implies no disrespect for the State by entertaining the claim."); Booker v.
Wainwright, 703 F.2d 1251 (11th Cir.1983).
10

The current uncertainty in our Circuit over the degree of deference under 28
U.S.C. 2254(d) to be accorded to a trial court's finding of cause, see Darden v.
Wainwright, 699 F.2d 1031 (11th Cir.1983), vacated on reh. en banc, at 1043
(April 6, 1983); Hance v. Zant, 696 F.2d 940 (11th Cir., Jan. 24, 1983) is
immaterial to our disposition of appellant's claim. We are convinced that the
trial court erred in finding cause for excusal in this instance under even the least
rigorous standard of appellate review