Professional Documents
Culture Documents
Johnny Paul Witt v. Louie L. Wainwright, Etc., 714 F.2d 1069, 11th Cir. (1984)
Johnny Paul Witt v. Louie L. Wainwright, Etc., 714 F.2d 1069, 11th Cir. (1984)
2d 1069
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.
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
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
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:
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
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
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
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
27
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
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
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
35
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
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
40
41
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
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
47
48
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
64
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
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
70
71
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.
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
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)
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