Kenneth Granviel v. W. J. Estelle, Jr., Director, Texas Department of Corrections

verdict, sentencing separate pro- guilty Before AINSWORTH and HENDER aggra- is held in ceeding which additional SON, *, Judges, Circuit Dis and HUNTER vating mitigating evidence be in- Judge. trict jury The then the fol- troduced. answers HENDERSON, Judge: lowing questions on the the evi- Circuit basis of phases dence at both the trial: adduced appellant, Granviel, The Kenneth was (1) convicted in the whether the conduct of defend- 213th Judicial District the Texas, Court of Tarrant County, ant that caused the death of the deceased capital murder two-year old Natasha deliberately was committed the McClendon received the death sentence. expectation reasonable the death of Appeals The Court of af Criminal result; deceased another would conviction, firmed the Granviel (2) probability whether there is a denied, 107 (Tex.Cr.App.1976), cert. the defendant would commit criminal 933, 53 L.Ed.2d 250 acts of violence that would constitute a (1977), as well as the subsequent denial of continuing threat society; corpus relief, state habeas Parte Ex Gran (3) evidence, if raised viel, 561 (Tex.Cr.App.1978). S.W.2d 503 killing the conduct of the defendant then petition Granviel filed a for a writ of was in re- deceased unreasonable corpus habeas in the United District States any, sponse рrovocation, to the if for the Court Southern District Texas. (Not case.) applicable in deceased. case transferred to Northern Texas, Division, District Fort Worth 37.071(b). The each prove Art. state must petition appeal where the This denied. beyond issue submitted a reasonable doubt. followed. 37.071(c). If jury Art. answers each questions affirmatively, these gruesome multiple details of the mandatory under terms of rapes and murders which resulted Gran- required viel’s conviction A life if fully explicated statute. sentence is first responds question. Texas Court of Criminal jury “no” to one * Judge District of the Western District of Louisi- ana, sitting by designation. jury’s case, bring the defendant jury 37.071(e).1 In Granviel’s low[ed]

Art. second mitigating to the first and whatever circumstanc “yes” answered attention and, court accordingly, the trial questions may be a able show.” Jurek v. es he sentence. imposed Texas, 2950, 2956, U.S. One such miti 49 L.Ed.2d specifically contends that gating by factor enumerated the Texas in his sentencing procedure, applied as in in its the Jurek case court case, jury to particular did not the allow an ex “whether the defendant was under mitigating the evidence as a factor consider pres of mental treme form or emotional Rather, instability. his men of his mental less, insanity, sure, something perhaps, than dangerous renders a abnormality tal him average but more than the emotions person “constitute admittedly who would inflamed, man, withstand.” purposes however could continuing society” to threat 934, 939-40 (Tex. 522 answering of the contained in art. Jurek v. S.W.2d Therefore, according 37.071(b)(2). Cr.App.1975). to Gran viel, persuade jury to the on having failed case, of In instant the Texas Court the defense, his the evidence of insanity the Appeals met squarely Criminal Granviel’s have only possibly condition could mental statute, challenge particular conclud- pen aggravating an factor at the served as ing: the trial.2 alty phase of Moreover, jury answering spe- the the quite Court made clear Supreme has may properly issues consider all the cial sentencing authority capital in a the guilt during adduced both the evidence precluded consider- may case “not be from phases This punishment of the trial. factor, aspect of a ing mitigating as a defendant’s could include evidence of a character or defendant’s record such evidence mental condition —whether of the offense that the circumstances ‘aggravating’ as or be characterized an proffers as a for a sentence defendant basis Thus, 37.- ‘mitigating’ factor. Article Ohio, than 438 U.S. less death.” Lockett v. 071(b), jury supra, prevent does not 2954, 2964-65, 586, 604, L.Ed.2d 98 S.Ct. considering a mental from defendant’s 973, (1978) (emphasis original); in the mitigating condition as a factor. Ohio, Bell v. 438 U.S. 516. at (1978); L.Ed.2d 1010 v. North Woodson agree the evidence Carolina, While condition, chan- mental when in Granviel’s L.Ed.2d 944 With this standard held, through statutory inquiry, mind, neled second response to a simi- Court his likely aggravating an result in challenge 37.071(b), that the most had lar to art. case, we do statutory question, by construed individual not believe second as absolutely precluded “al- from con- Appeals, jury the Texas Court Criminal mother, unanimity, attempted requires rape answer to threat- An affirmative his beat ening her, jurors younger whereas ten of the twelve negative return a him- kill his brother and 37.071(d). Thereafter, answer. Art. he was sent to Gatesville self. Boys, to a School for where he described State prosecution 2. Neither nor the defense sticking psychiatrist pleasure knives into his sentencing presented additional evidence at the “watching squirt” while the blood meat and Instead, stage. rely both sides chose to on years working school A few kitchen. during guilt record made inno- trial on Gatesvillе, release from Granviel after his cence. jumped girlfriend and out of a tree onto The evidence of Granviel’s mental distur- hung her a banister later her heels over means bance was no As a insubstantial. threatening drop Approximately while her. child, attempted he times to bum down several murders, of. he two weeks before first set younger his mother’s house. His brother often stomach, girl’s same beat and stood on the tying pillows rags strips observed him raped gunpoint. psychologist who her at One body to simulate the of a woman and then diagnosed as for the defense Granviel testified times, “having sex with them.” At he tried schizophrenic. paranoid performing force his brother into homosexual sixteen, acts with him. When he was true, It is as the sidering mitigation. this evidence In- NAACP maintains in its brief, deed, “yes” amicus taking a curiae that a quite different tack answer statutory question the first logically follows here, that used defense counsel stressed the from a capital conviction of murder. See closing following point during argument at However, Tex.Penal Code Ann. 19.03. § phase the penalty of the trial: is necessarily such the case. The Texas Mr. has told Strickland the Defend- Appeals explains Court Criminal in- sanity longer ant’s I no an issue аnd consistency follows: agree. You up your have made mind on having jury found that a defendant [A] that point, but it is not true that the state intentionally committed a murder mind, of his his mental is still condition to be to find consistent would have issue, not so far aas defense of insani- However, deliberately act was done. ty, there is not witness who question the to inconsistent answer the in testified this case who led to be- 37.071(b)(1) only Art. the reflects that nothing wrong lieve there that was with jury did want as- penalty not the death If sociopath, you man. he is a heard sessed. Dr. they Sociopaths burn out. Methner — State, n.6 Blansett v. 556 S.W.2d deep youth. burn out. It’s a disease of (Tex.Cr.App.1977). Similarly, in v. Brown youth. It is a personality disorder of (Tex.Cr.App.1977), S.W.2d Dr. Methner also said this man could rejected the Texas court the contention that psychiatric benefit from help. 37.071(b)(1) requires finding art. same guilt as a of determination under 19.03. § R. Moreover, 3275-76. proffered Granviel a jury, having It is not inconceivable that argument similar appeal on his direct the requisite found intent for a conviction There, Texas Court of Appeals. Criminal having rejected of murder and he maintained that because of his “antiso- defense, that, insanity may yet conclude disorder,” cial personality the evidence disturbаnce, because of of evidence mental should support be considered insufficient to a defendant’s acts should not be deemed the jury’s affirmative answer to the second sufficiently deliberate to warrant the death statutory question. penalty. again, Here that note Granviel disagree sugges- also with Granviel’s propounded argument a similar on his first tion 37.071(b)(2) that art. only statu- appeal, where he maintained that the mur- tory question investigation.3 relevant to our der of Natasha McClendon “occurred in a 37.071(b)(1) Art. requires the jury to decide frenzy” and that there was insufficient evi- the defendant acted deliberately dence that deliberately. it was done and with expectation the reasonable True, 123. the Texas Court of death would result. This inquiry seems to Appeals agree Criminal did not with Gran- be the better for concept vehicle of reasoning. viel’s jury’s But the affirmative mitigation which is primary importance question, answer to the appellate and the Granviel, i.e., that mental disorder less- court’s determination that the evidence was ens culpability. moral response, sufficient support do not Supreme response provocation by Court based its in decision Ju- de- 37.071(b)(2), rek v. Texas on might art. but stаted ceased. This be construed to allow the respect statutory provisions: with jury which, though the other to consider circumstances itself, not as a sufficient defense to crime Appeals The Texas Court of Criminal has might enough mitigating nevertheless have yet ques- construed the first and third claim, force to ...; avoid for yet tions whether thus as it is undetermined —a example, a woman hired who an assas- jury’s or not the consideration of sin to kill husband questions her was driven to it properly those con- include cannot, cruelty continued ever, to her. We mitigating how- sideration of circumstances. In at statute; power could, questions construe the is re- least some situations the however, comprehend inquiry. served to the Texas such an For courts. example, n. third 428 U.S. at 272 at 2956 n. asks whether the conduct was L.Ed.2d at defendant unreasonable 938 n. 7. developed at the trial the case before jury precluded us that persuade them, (2) considering the evidence Granviel’s their attitude toward from mitigating factor. instability prevent them mental the death consideration. impartial to this making He is entitled decision as to holding in Jurek Supreme Court’s guilt. Given the defendant’s 37.017(b)(2), respect to art. v. Texas (emphasis original). Id. understanding of the and оur own whose exclusion Of the five veniremen 37.071(b) as a construction of art. court’s held, challenges,5 the district court Granviel whole, capital-sentenc- we conclude that the magistrate’s with the recom- accordance ap- is not unconstitutional as ing statute mendation, venireman, L. that one Donald plied to Granviel. Harrison, improperly for cause excused validity As a second attack on the scruples merely voicing conscientious sentence, asserts that his death We, too, penalty. believe improperly five veniremen were excluded for cause consti- that Harrison’s exclusion Witherspoon for cause in violation of Witherspoon violation.6 He was tuted a Illinois, 1770, 20 first asked whether he had conscientious (1968).4 Witherspoon rule L.Ed.2d 776 scruples against the infliction of the death subject has been the of much discussion stated, “I don’t penalty, whereupon he see, pronouncement, g., since its e. Boulden know means.” When asked if what that he Holman, 478, 1138, 22 v. 394 U.S. 89 S.Ct. penalty, inflict the death could ever vote to (1969); Bishop, v. L.Ed.2d 433 Maxwell 398 “No, replied, he I don’t think I could.” 262, 1578, 221 U.S. 90 26 L.Ed.2d S.Ct. Then, response question, in to the “You 122, (1970); Georgia, Davis v. 97 U.S. like would be entitled to take don’t feel (1976); 50 L.Ed.2d 339 Marion v. S.Ct. fashion?” He persоn’s another life in that Beto, 1970), (5th cert. de 434 F.2d Cir. said, “No, then I could not.” nodded and nied, 1372, 28 L.Ed.2d 402 U.S. 91 S.Ct. questions These and answers fall far short Estelle, (1971); Burns v. 626 F.2d 396 he of an affirmation Harrison that (5th 1980) (en banc), and we do not Cir. automatically against the death would vote Briefly stat delve into its intricacies here. evidence, penalty regardless of the or that ed, Witherspoon provides venireman that a objections capital punishment would only if he is be excused for cause impartial prevent making him from an deci- committed, “irrevocably before trial has guilt. sion toas begun, against penalty to vote of death recently This court reaffirmed its com- regardless of the facts and circumstances ensuring mitment to strict adherence might emerge of that in the course Witherspoon v. Es- mandates of in Burns n.21, proceedings.” 391 at 522 U.S. banc). telle, (5th 1980) (en 626 F.2d 396 Cir. n.21, at 1777 20 L.Ed.2d at 785 n.21. There, improper exclusion explained right state retains the to exclude those juror prospective of a as follows: who veniremen [Tjhree Mrs. Doss (1) times in succession unmistakably they clear that ma[k]e in the against stated that she did not believe automatically would vote the im- following penalty, death with an affirma- position capital punishment of without might affect her delibеrations regard any evidence that be tion that it would recently upheld appli- of Supreme 5. The relevant voir dire examination of each 4. The Court Harrison, cability Witherspoon bifurcated these veniremen —Donald L. Homer to Texas’ Wallace, Texas, Roy procedure. Lipscomb, Adams N. Inez Mrs. I. Cox reproduced We note Mattie D. Vernon —is 65 L.Ed.2d 581 12.31(b), Appendix. that Tex.Penal Code Ann. the stat- § been ute which was held in Adams to have improperly independent as basis for express propriety used an no as to the 6. We jurors, prospective Wallace, is not in striking prospective jurors Lipscomb, Cox, the exclusion of issue here. and Vernon. juror Witherspoon hardly violation of can on issue of fact ‍​‌​​‌‌‌‌‌‌‌​‌‌​‌​‌‌​​​​​​‌‌​‌​​​‌‌‌‌‌​‌​​​​​‌‌‌​‍in the case. These indeed, strong expressions they questioned light decisions such as unequivocal disqual- fall short of avowals Georgia Davis v. and Marion v. Beto. ifying aspect of Wither- her under either maintains the cause for the spoon’s two-pronged test. . .. object failure to was the reliance defense which, counsel on Texas case law at the equivo- 626 F.2d at 397-98. Mr. Harrison’s trial, cation slightly contempo- differs kind from that time of his indicated that a Doss, certainly Mrs. but is of no lesser de- objection prerequisite raneous was not a gree. pos- While Mrs. Doss stated that the subsequent Witherspoon assertion of a sibility penalty “affect” seem, however, error. It would fact, her deliberations on issue of Mr. contemporaneous objec- absence of a state and, representations Harrison made no such Sykes tion rule would render issues indeed, questioned was never as to whether Thus, irrelevant. we turn to Granviel’s his attitude toward the death no contention that there was such rule in prevent making impartial him from de- Texas in October of 1975. Further, guilt. termination as to Mrs. (Tex. In Tezeno v. repeated Doss’ disclosures that she did not Cr.App.1972), the Texas Court of Criminal believe in were no less Appeals Witherspoon chal- entertained indicative of an automatic vote jurors, lenges to the exclusion of several imposition capital punishment than was including one whose voir dire examination Mr. Harrison’s statement he did not was much the same that of venireman feel that he would be entitled to take an- (incorrect- Harrison.7 The court concluded person’s other life. believe) occurred, ly, we no violation Normally, our determination but nevertheless reached the merits оf the veniremen Harrison was improperly ex Witherspoon though claim even defense cused would inquiry; conclude our for if counsel expressly had stated that he had no just one prospective juror is struck for rea objection challenge to the for cause. The sons Witherspoon, insufficient under the court reasoned as follows: death must be set aside. Davis v. not, objection apparently Waiver of will Georgia, Beto, supra; supra. Marion v. itself, improper challenge. in vitiate an However, case, in the instant the district is, however, It a factor to be considered in court, again following magistrate’s the rec bar, cases such as the one at the where ommendation, held that defense counsel’s meaning exact of a venireman’s answer contemporaneously object failure to accuracy cannot be ascertained with total improper exclusion amounted to a waiver of from the words of his answer alone. Witherspoon the error. 484 at 383 n.2. Supreme The Court established in Wain- 30, 1975, April On the Texas Court of wright Sykes, v. 433 97 U.S. Appeals State, (1977), Criminal decided Hovila v. procedur- L.Ed.2d 594 that a state (Tex.Cr.App.1975), holding al waiver of a 532 S.W.2d 293 constitutional claim bars fеderal corpus jurors habeas that several review absent a were struck for reasons showing of “prejudice.” “cause” and Witherspoon. insufficient under Defense prejudice resulting from the exclusion of a counsel had contemporaneous voiced no ob- right. scruples 7. Do have absolutely opposed conscientious All You’re Q against punish- the penalty, assessment of death grounds? as a to that on conscientious murder, case, proper ment for Yes, the crime of in a A sir. sir? you, Thank sir. Q challenge Yes, sir, MR. BENNETT: We’ll A cause. I do. objection, it, MR. by answer, then, CALDWELL: No your Your I Hon- take Q that there or. whatever, are no facts or circumstances that excused, right. justify you, personally, THE rendering COURT: All You’re Mr. in Juror. verdict in a murder case? A I don’t believe I 484 S.W.2d at could. 382-83. exclusions, object to of Vernon the exclusion Mattie D. improper yet the jections to As Witherspoon possibili- grounds.10 to the other not even mention the on the court did exclusions, ty challenged of waiver. defense counsel testi- hearing at habeas he fied the state that Boulware until It was not its decision deliberately object he chose not to because v. (Tex.Cr.App.1976), S.W.2d 677 required felt he so under was not do overruled Hovila expressly where it law. tac- Texas We cannot condone such Tezeno, that court held that Indeed, agree tics. with the state’s as- object failure to constituted a waiver of a object when sessment fail “[t]o Witherspoon claim. We cannot enforce perceives counsel error is to undermine the contemporaneous objec against Granviel a However, integrity judicial process.” of the did not even exist apparently tion rule l.8 apparent absence of a Texas faced time of his at the tria contemporaneous objection the time rule at We must admit we reach this result trial, and ever-mindful of the of Granviel’s reluctantly great and without satisfaction. Witherspoon transgression and gravity of a obviously do not have here the situation assertion, consequences precluding of its Judge Goldberg opinion in his perceived excluding ve- we decide that the error Estelle, (5th in Jurek 593 F.2d Cir. was not Accord- nireman Harrison waived. 1979), now vacated the decision of the ingly, Granviel’s death sentence cannot (1980) (see banc, 5th court en F.2d stand. 17.) Rule He concluded Jurek’s Cir. error, ground As his third ignorant of the trial counsel either psychi- allowance of сertain asserts that the Witherspoon holding or that he misunder- guilt phase of the it, téstimony atric explaining thus his failure to ob- stood attorney-client privilege trial violated ject improper exclusions. Granviel’s his Witherspoon deprivation Sixth resulted counsel well-aware rule, right to effective assistance of objections his certain lines of Amendment did, fact, our resolution issue He counsel.11 of this questioning demonstrate.9 Since “[Mjuch given Witherspoon here: of the voir dire concerned the 8. The treatment Granviel’s appeal Witherspoon problem; judge’s claims on his direct is somewhat confus- the trial com- ing. responses The Texas court discussed the questions clearly ments and ... indicate that veniremen, implying of each five upon during focussed attention was Then, one, proper. exclusion was as to each Bums, cutting panel.” process entire In Vernon, (except Mattie D. whose exclusion did finding these militated factors objection) Boulware in elicit an it cited con- waiver. en banc reaffirmed cluding no error was shown. S.W.2d 112- merits, panel’s holding implicitly on the thus approving waiver issue. the discussion going object. improper 9. I’m to That is an record, purpose going 10. For the I am question, whether it would be in conflict with object exclusion of Mrs. Mattie D. to the religious feelings. grounds (sic) questions her Vernon on the R.1058. unequivocal were never did she less than and say automatically against she the vote object. I person The most the State can demand is a every case .... willing penal- all the to consider R.1728. ties. R.1059-60. argu- employs 11. assume that Granviel itself, upon as the ment an attack conviction object being improper I will question. to that as challenge aimed sole- and ly it is not another is whether or not she validity at the of his death sentence. We unequivocally automatically vote note, however, specifically he does not against every it in case. testimony complain psychiatrist’s 1725. R. defense, insanity but rather weakened his By token, prosecutor the same and the damaged jury’s deter- him in relation judge cognizant trial were also need to 37.071(b)(2). yet, Indeed, our mination Art. And comply Witherspoon. under the obser testimony Estelle, by no Judge of the record reveals examination vation made in Burns v. Gee directly 1979), by (5th on the Dr. which touched F.2d en Holbrook Cir. reheard banc, dangerousness. equally applicable (1980), future issue of 626 F.2d is Granviel’s Worth, which largely dependent aspeсts certain tests were made at a later on law, 9, 1975, August we find the upon Texas Court of date. On Appeals’ analysis problem request appointed Criminal State’s the court Dr. Brown, Hugh psychiatrist, appeal helpful, on Granviel’s direct most to examine appellant at County both as to facts and the relevant the Tarrant Jail. state Dr. Brown inability wrote the court of his law: appellant appellant to examine because Appellant attorney- contends that the refused to talk to him without his counsel privilege client was violated Methner, present. John being Dr. a court subpoenaing calling State’s appointed psychiatrist requested by the psychiatrist witness stand John T. Hol- 13, 1975, April testified that on brook, appointed who was ap- to examine appellant when he tried to examine the pellant request at the appellant’s court counsel, presence of his he was unable appointed Appellant counsel. contends appellant to do so because refused to talk agent appel- that Dr. Holbrook was an cooperate to him or for the examination. lant’s trial counsel because he was em- appel- Counsel statеd that he advised the ployed to assist preparation them in the lant he did not have to talk to the of the defenses in the appel- trial. The however, psychiatrist (Dr. Methner); lant’s defense is that he was insane psychiatrist get appellant did to observe at the time of the commission of the for a while. offense. 46.02, V.A.C.C.P., 2(f), Art. Sec. On the request appellant written 30, 1971, August amended and effective appointed court Charles Dickens and appointment at the date of the of Dr. Sullivan, Esquires, practicing Frank at- 22, 1975, May provides: Holbrook on torneys February to defend him on ‘(1) may, The court its discretion Appellant’s 1975. counsel then contacted appoint qualified experts disinterested Holbrook, Dr. psychiatrist, some time n regard to examine the defendant with 26, 1975, April before requested him present competency to his to stand trial appellant examine in the Tarrant sanity, and as to his testify and to County Jail. These examinations were any hearing thereto at trial or in con- April made on May 26 and against nection the accusation Present at both examinations were the accused ... psychiatrist, appellant and counsel. Dr. Holbrook stated that appellant satisfacto- ^[******] rily communicated with respond- him and (4) No statement made the defend- questions ed to his during the examina- during compe- ant examination into his tion. tency shall be admitted in evidence the accused on 22, 1975, the issue of May upon On counsel’s writ- guilt proceeding criminal no motion, ten appointed the trial court Dr. matter under what circumstances such John T. Holbrook ‘to examine the defend- place. examination takes ant in County the Tarrant Jail at (5) all Any party may times that are convenient both to Dr. introduce other competent testimony regarding John Holbrook and the the de- Sheriff.’ On the competency.’ same fendant’s upon date the court appellant’s counsel’s appointed written notice statute, Dr. M. Under this the trial court’s al- Jerold May psychological to administer lowing testify prop- Dr. Holbrook to appellant tests to at his office in Fort ‘[A]ppoint qualified er. disinterested ex- Rather, import testimony separate sentencing phase the of his the Also, was that of the trial. psychosis prosecutor’s only Granviel suffered from no and that reference to Dr. sane, definition, legal he was testimony during arguments within the at the Holbrook’s at penalty phase time of the commission of the offenses. As we was that “Dr. Holbrook said he previously, prosecution mentioned neither the should be [Granviel] held accountable for what testimony nor the defense offered additional at he did.” R.3291. days of the order of examina- within 21 . . the defendant to examine perts copies court shall furnish expert is not tion and the such means that clearly defense counsel and expert report of the to the as the by the court appointed report defense, attorney. court’s shall prosecuting but is the or the the State procedures may appoint description He expert. include disinterested and without and the exam- expert at his discretion used in the examination such (sic), party findings per- and either and motion therefore iner’s observations Therefore, witness. may subpoena taining insanity such defense. to the attorney-client privilege exists as no ****** Dr. Holbrook. under this (g) experts appointed State, [Tex.Cr.App.], In v. Stultz with section to examine the defendant 853, said: this Court S.W.2d may regard insanity defense also to the is not an psychiatric ‘A examination appointed by the court to examine purpose is proceeding. Its adversary regard to his com- the defendant facts not to aid in establishment pursuant to petency to stand trial Sec- an accused committed showing that code, Article 46.02 of this tion 3 of crime; rath- constituting a certain acts reports separate written provided that ex- er, is to enable an purpose its sole concerning competency defendant’s as to an ac- pert to form insanity and the defense to stand trial to form a crim- capacity cused’s mental court.’ be filed with the shall inal intent. 46.02, (In- V.A.C.C.P. Cf. Article Sec. intimate, and personal Because of the trial). to stand competency psychiat- of a highly subjective nature litigation procedural statute controls A examination, of a third presence ric State, Wilson v. its effective date. capac- legal and non-medical party in a trial 532. The Tex.Cr.App., S.W.2d severely efficacy limit the ity would ’ instant case was in October (Emphasis .. . add- the examination 46.03, 3, supra, was then Article Sec. and ed.) Wilson, supra. controlling. effective and State, Compare Walker v. 19 Tex.Cr.R. State, [Tex.Cr.App.], 527 v. Cf. McCarter State, (1885). also Gholson v. See S.W.2d Tex.Cr.App., 542 46.02, supra, negate Articles 46.03 46.03, effective Art. Sec. V.A.C.C.P. that the at- appellant the contention 19, 1975, provides June as follows: violated. privilege was torney-client ‘(a) raise the If notice of intention to appellant had Both State insanity defense is filed under Section subpoena psychiatrist and right article, may, the court on its this trial. There testimony his at the adduce by the defend- own motion or motion in the result when is no difference ant, counsel, prosecuting or the at- completed before the were examinations experts torney, appoint disinterested made, in the instant appointment experienced qualified in mental case, appointed psychiatrist when a health or mental retardation to exam- his examina- and then makes by the court regard ine defendant with tion. insanity testify defenses and to thereto physician issue, between a hearing on trial Communications privileged under patient and his the court not order the defendant has no statute estab- Law. Texas hospital to a state mental for examina- invar- lishing privilege and the courts of the head of tion without the consent recognition. Bonewald iably deny its See hospital. state mental ****** Tex.Cr.R. 251 S.W.2d (d) report A written of the examina-

tion shall be submitted to the court ^[******]

682 Rather, in situation. psychiatrists in this

There is no affirmative evidence or showing instant case that Dr. Holbrook psychologists who examine a defendant any fact be- revealed or communication respect competency to or insanity with are showing appellant tween and him as designated qualified “disinterested ex- appellant committed a crime na- such, may perts.” they As be subpoenaed ture. testimony shows to the con- not, by party they either as Gran- trary that Dr. communi- Holbrook never suggests, agents viel of either defense coun- anyone attorney’s cated to in the district prosecutor. sel or the facts, office such statements or if have, realize that state several courts resulting any, he the examinations indeed, adopted by the rule advocated Gran- appellant sanity made of as or his to his See, g., Lipson, e. Lindsay viel. v. 367 Mich. 46.02, Therefore, competency. Article (1962); N.W.2d 60 San 116 Francisco v. 2(f)(4), 46.03, supra, Sec. and Article Sec. Court, Superior 37 231 Cal.2d P.2d 26 3, supra, have not been violated. Kociolek, (1951); State v. 23 N.J. 129 Appellant Holbrook’s claims that Dr. (1957). Also, Circuit, A.2d Third examination was his defense necessary to remarkably with a faced similar set of request insanity failure to facts, concluded attorney-client examination would have ineffective been privilege recognized psy- should be when a assistance of Appellant counsel. con- is chiatrist secured defense counsel for tends employing Dr. Holbrook he in preparation. assistance trial United created involuntary witness State’s Alvarez, (3d v. States 519 F.2d Cir. gave who testimony appellant adverse to However, 1975) it so .12 did in the context relating Special to Issue No. 2 under Arti- appeal of a direct from a federal conviction. cle 37.071(b)(2), V.A.C.C.P. In view of deciding scope We are not here previous our discussion of the status of appropriate application of the attorney- Dr. expert Holbrook as a disinterested privilege proceed- client for federal criminal 46.02, 2(f) witness under Articles Sec. hence, ings; liberty we are flatly not 46.03, 3, this is Sec. contention without agree disagree with Third Circuit merit. Rather, rule. we must determine 552 S.W.2d at 114-17. (Emphasis origi- in a privilege, though perhaps such rule of nal.) preferred, constitutionally required. is that, Granviel admits order in prevail issue, on In concluding he must there is no such establish that mandate, his conversations with substantially Dr. Holbrook were constitutional we protected agree within the attorney-client privi Judge with the rationale of Weinstein lege However, as it thorough exists Texas. it is his excellent and law, clear interprеted Smith, that under Texas F.Supp. (E.D.N.Y. Edney by the Appeals, , aff’d, Texas Court of 1976) (2d 1977), Criminal 556 F.2d Cir. a attorney-client privilege which, does attach corpus present habeas for our case analogized would, think, 12. The court the case United have the inevitable effect of Kovel, (2d 1961), States v. depriving F.2d 918 Cir. defendants of effective assist- privilege where the Second Circuit psychiatrist held the ance of counsel in A such cases. applicable to necessity inquiry communications made to an ac- will of make about the facts purposes aiding crime, countant for the preparing counsel in surrounding alleged as the there, a defense. From attorney reasoned will. Disclosures made to the attor- appellant had been denied effective ney proof cannot be used to furnish counsel, assistance of as follows: government’s case. Disclosures made to the attorney’s expert equally The issue should unavaila- here whether a defense counsel ble, involving placed potential in a case at least until he is on the a defense witness insanity psychiatric attorney must run the be free risk that a stand. must to make an expert judgment respect he whom hires to him informed advisе with the best respect to the defendant’s condition mental course for the defense without the inhibition involuntary govern- creating potential government be forced to be an witness. ment witness. The effect of such rule F.2d at 1046—47.

683 prosecu- appointed who were at the perts same essentially the involved purposes, courts request.16 defendant As other circuit tion’s Recognizing facts.13 of the a result as prejudice suffer have noted: might to allowing psychiatrist York rule

New situation, indeed, strange It be a as to inquired Judge Weinstein testify, compelled first, government is to be if New York by drawn “the balance psychiatric ample defense afford the to attorney’s effective to the is so detrimental government ex- at service and evidence prohib- as to be his client of representation and, second, government if the pense, 425 Amendment.” by ited the Sixth yet it is proof to have the burden —and this He then answered at 1053.14 F.Supp. have its opportunity to be denied the negatively: question exami- verifying corresponding and own the New only speculate We can most nation, perhaps is the step which prejudice in substantial results York rule meet attempting trustworthy means defendants. to criminal that burden. defendant to his by the The statements 719, Albright, F.2d 724 v. 388 United States were not admitted to estab- psychiatrist 1968), Pope v. (4th quoting United Cir. having of his committed lish the fact 710, 1967), States, (8th Cir. F.2d 720 murder, a basis for only but to establish grounds, on other vacated and remanded petition- psychiatrist’s evaluation 651, 2145, 20 L.Ed.2d offense.[15] sanity at the time er’s observa- made a similar (1968). This court use, preju- any possible this limited Given prosecution: context of a federal tion in the balanced, within limits not dice have a sat- government will seldom [T]he case, strong by the coun- in this exceeded meeting defendant’s isfactory method of in ac- ter-balancing interest of State by except sanity issue of proof on the fact-finding by its courts. curate selects —in- psychiatrist it testimony of a sum, seems undesirable In psychi- testimony cluding, perhaps, the majority rule on the time to canonize has by him —who experts offered atric privilege attorney-psychiatrist-client form a reliable opportunity to had the form not into a constitutional freeze it statute, examining the accused. rule, opinion by change by amenable development. further case-law (5th Cohen, 530 F.2d United States F.Supp. at 1054. Hence, omitted). 1976) (footnote Cir. to habeas is not entitled hold that Granviel to this outcome esрecially driven We are and Sixth attorney-client Granviel, relief on the at his counsel’s in this case where grounds.17 cooperate the ex- Amendment urging, refused to courts, refusal could result 16. In federal such Edney, not state court had In the New York 13. testimony here, any expert held, offered the exclusion the Texas court did inapplicable, attorney-client privilege by of his mental but on the issue the defendant 12.2(d). by waived the mere Fed.R.Crim.P. rather that it had been state. See insanity People v. defense. assertion Edney, N.Y.2d 385 N.Y.S.2d of the Fifth Amend- 17. We note that the issues matter, practical there As a N.E.2d 400 privilege against compelled self-incrimi- ment difference in the effects would seem to be little right to coun- nation and the Sixth Amendment approaches. of these two Supreme recent which underlie the Court’s sel Smith,-U.S.-, Estelle v. decision in Judge (1981), Alvarez noted that 14. Weinstein are not in- 68 L.Ed.2d 359 court, language although using attorneys “constitutional were and his volved here. Granviel certainly tone,” prosecution did not have a constitutional intended that the aware they before it. as a witness and to call Dr. Holbrook expert opinion and the ‍​‌​​‌‌‌‌‌‌‌​‌‌​‌​‌‌​​​​​​‌‌​‌​​​‌‌‌‌‌​‌​​​​​‌‌‌​‍knew of the conclusions Further, case, testify. Dr. Holbrook did In the instant which he would anyone way compelled him statements made to to submit relate to Granviel, in no expert derived Holbrook. examination psychiatric examination. from the 684 PART; AFFIRMED finally urges IN

Granviel that he was REVERSED IN PART, deprived AND REMANDED right of his Amendment FOR FUR- Sixth THER PROCEEDINGS IN ACCORD- hospi confrontation the introduction of ANCE WITH OPINION. THIS containing diagnostic opinions. tal records presented by These records were the State APPENDIX to rebut defense evidence that had hospitalized insanity. been for DONALD L. HARRISON Q: (By Prosecutor) The defendant recognizes the business records ex- charged capital this case is murder. ception rule, hearsay to the Tex.Rev.Civ. only There are punishments two for the 3737e, applies Stat.Ann. art. it in crimi- capital offense of murder and that is either cases, State, nal as well as civil Coulter v. penitentiary. death or life in the (Tex.Cr.App.1973). 876 Gran- Now, you do have conscientious scru- complains viel that the state strictly did not ples against the infliction of the death adhere procedural requirements punishment as a for crime? 3737e, and, further, art. diagnostic that the A: I don’t know what that requisite lacked the means. However, trial, trustworthiness. at the de- Q: you Let me ask you, personally if merely objected fense counsel to the admis- Juror, sitting as a could ever vote so as to ground sion of the evidence on the penalty? inflict the death “hearsay.” The Texas Court of Crimi- No, A: I don’t think I could. insufficient, nal Appeals objection held this Q: prejudice feeling That is a definite or 121-22, citing S.W.2d at previous its you you change? have that would not opinions State, in Forbes v. 513 S.W.2d 72 You you don’t feel like would be enti- (Tex.Cr.App.1974); State, Williams v. person’s tled to take another life in that S.W.2d 606 (Tex.Cr.App.1976) (objection fashion. contemporaneous); must be and Bouchillon (Venireman nods.) A: v. (Tex.Cr.App.1976) S.W.2d 319 Q: Okay, you could not? (objection general too properly overruled). Granviel having failed to demonstrate A: No. I could not. “prejudice” “cause” and in connection with MR. challenge, WILSON: Your the inadequate objection, Wainwright see Honor. Sykes, 433 U.S. 97 S.Ct. 53 L.Ed.2d THE COURT: The any defense have (1977), corpus habeas relief proper- objections?

ly ground. denied on this MR. We don’t DICKENS: have questions. Accordingly, petitioner’s death sentence THE aside, right. All must be set COURT: judgment and the district court is reversed insofar as it leaves The Court feels that the State’s chal- the death sentence in effect. In all other lenge qualified for cause is in this respects judgment is affirmed. supported by cause and the evidence. case is remanded to the district court with excused, then, You will be Mr. Harri- directions that the State of Texas deter- you (R. son. Thank very much. mine within a (1) reasonable time whether 711-12). to conduct a new sentencing proceeding in N. statute, HOMER LIPSCOMB provided by manner (2) state or petitioner’s

to vacate sentence impose Q: Prosecutor) (By .. . There sentence less than death in accordance with possible punishments two capital mur- state law.18 der, is life or death. Beto, (5th 1970),

18. Marion v. 434 F.2d 29 Cir. denied, cert. L.Ed.2d 646

Q: You would automatically vote Now, bearing imposition the fact that this mind no matter what the situation, murder I will ask trial reveal? whether or you have consci- A: Yes. religious scruples against entious Q: And no matter what these facts re- imposition of the in a penalty prop- death veal, no matter how terrible the crime er case? might be, enough that would not be to I’m A: I very religious but do have. you your personal deep cause to set aside I against am kind of penalty. the death regarding convictions this matter? Q: against Kind of penalty. the death I A: I my wouldn’t want that on mind. candor, appreciate your course that is we why you questions. need to ask these Q: conviction, And this is a firm I take it, you from you what have said? say you against

When are kind of the deаth penalty, you do mean what A: Yes. that? Q: And it’s the sort conviction which be, IA: mean it have to you would you going are not let anybody you talk know, am, I really don’t know what I but I of, presumably something out your- within just part wouldn’t want a to be of it. self and of you course have to live with Q: I understand that. yourself your convictions and it’s some- course, Of nobody thinks it’s a very thing you you believe in and going are not pleasant occasion, nobody thinks that it’s to let anybody you talk out of that? something they particularly would want A: Yes. do, is, course, Q: I appreciate that, you telling Mr. whether or not you yourself person- could Lipscomb, appreciate your and we do can- ally part take in making decisions which dor.

you knew would result in the death of a being. human Honor, MR. STRICKLAND: Your I position A: don’t I it’s the think would. State these are deep sincere and seated convictions and Q: You don’t you think could? as such challenge we would Mr. Lip- Well, you I argu- understand have no scomb for cause. position, ment that but it’s necessary THE The challenge COURT: we exactly you that find out how feel granted authority under the of Wither- it. about spoon (sic) (R. 809-11). Illinois. you what saying you Is are have personal deep-seated feelings which prevent you rendering from a deсi- INEZ WALLACE sion which would result in the death of a Q: Prosecutor) (By ... I’d like to ask person in any case whatsoever? now you you personally have A: I don’t feel like I am kind of a conscientious or religious scruples against

judge. imposition penalty Q: You don’t you imagine think could proper case? any sort of case in you which feel the death Well, A: I don’t truth. know exact- justified, would be then? how I ly way. feel in that A: No. Q: course, Of I can understand that. It’s Q: By you you mean would auto- point, something a serious but it’s we need matically vote the infliction of the obviously to talk about if we because are penalty, death no matter what the facts possible alternatives, faced with two. particular were in case? jurors need to make sure we have might it,

A: I consider but I automati- are able to consider both those alterna- right cally now. tives. rendering being part able to take penalty? a death it some give been able you

Have thought about you Have thought? Yes, sir, in it. just I don’t believe A: here over you came say, before question, Q: just don’t believe in the You jury service? on are, Regardless the facts penalty? of what and I Well, in the Bible I do believe A: ought to take just people you don’t believe anyone. kill no оne should don’t think life? ‍​‌​​‌‌‌‌‌‌‌​‌‌​‌​‌‌​​​​​​‌‌​‌​​​‌‌‌‌‌​‌​​​​​‌‌‌​‍person’s another that, if I about Q: Okay. Let’s talk say. I I know what else A: don’t in the say, T believe You may, for a while. don’t . . . things that it Bible,’ you believe By kill. and no one should one, teaches understand, it Q: I number you could feel that you saying you don’t two, I realize feelings and number sincere re- to the death give consideration really had to something haven’t may you be in a might show what the facts gardless of thought You have experience before. case? any- say you haven’t had about it that. Well, I could do I believe you A: Well, just told me thing. you have penalty death you consider the think believe in the you could don’t

Q: You believe feel- your that would is are you question don’t feel I would have penalty death feel- religious feelings so your your conflict with are any way ings of such a nature or were, ings; right? is that facts deep no matter what the that object. give another going just would not be able to you I’m MR. DICKENS: it? improper question, penalty death or consider person That is an religious conflict with it would be in object. The most I MR. DICKENS: perhaps the death feelings. Certainly person be is a can demand State penalty might be. penalties. willing to consider all THE COURT: Sustained. Honor, rea- object I for that Your I make If MR. STRICKLAND: son, ques- wаy phrases and the he I think Wither- to that. a statement tion. wheth- inquire as to spoon allows us to THE COURT: Overruled. scruples and that they religious er have MR. BY STRICKLAND: my inquiry. point is the question again, or Q: I ask the Should is. agree I THE COURT: you did understand? BY MR. STRICKLAND: question. What was the A: that, I assume Now, understanding Q: in a involved like to be that no one would Well, way: you Are Q: let me ask it this situation, is, it’s not death saying feelings you have and what that the anybody, you understand pleasant task for already us these feel- you have told about that, is whether I need to know but what people not take ings you have that should part in a personally take you yourself could life, feelings such person’s another are those which personally make decisions trial and like you no matter what heard in a trial human death of another might result in the this, heard, you you could no matter what being? giving person the able to even consider I don’t think I could. A: ‘No, just say, penalty? You would Well, Q: you could. You don’t think just going part to take sorry. I’m I am you understand I don’t have quarrel in that’? position. with that All we need to do is kind of hard. I don’t know. That is A: need, and those your if that is conviction Q: I understand. well, deep feelings, your are and sincere course, you certainly course, entitled to those. Well, you understand Defendant, of сourse the then, deep- both sides and you saying, you

Are have a also, you if feeling prevent you need to know seated that would (sic) the basis of the witnesses testimo- ny. say you would not consider automatically these, Wallace,

one of is what we need to THE COURT: Mrs. I am purpose know and what is the of us talk- you very deeply sure do feel about this. is ing brought It’s your eyes; here this afternoon. tears to Honor, right? Your I MR. SULLIVAN: continual line of object to this VENIREWOMAN WALLACE: Yes. repetitive questioning. This Venire- THE right. COURT: All testified she could consider woman has I know easy thing it’s not an if the facts warrant- go through challenge here. The it; ed therefore the for cause is sustained. improper repetitious. Prosecutor is understand, Wallace, youDo Mrs. no- THE objec- COURT: Overrule the body unhappy you. tion. excused, You have been Mrs. Wal- my MR. SULLIVAN: Please note lace. exception. (Whereupon, thirty-six Juror number BY MR. STRICKLAND: excused.) Now, Q: you understand if that is the Honor, MR. SULLIVAN: Your way you indicated, feel —as I I don’t have judicial would the Court take notice any quarrel way you feel, with the but all Negro that Mrs. Inez Wallace was a we need precisely you to know is how do female?

feel and you, if I misunderstood set me Yes, THE COURT: the Court will. straight. thought you you I said did not (R. 1057-63). you feel that participate could in a trial in penalty might which the death be inflicted MRS. ROY F. COX upon somebody. you Did I understand Q: Prosecutor) Cox, (By . Now .. Mrs. right? punishment murder which is Well, say just A: I that is how I feel. I charged offense that this Defendant is participate wouldn’t like to in it. with is things one of two and that is Q: Let me you ask this: Nobody would confinement in the penitentiary for life or to, like I figure nobody really chair, would like to death in the electric and I would like be involved in something that, you like to ask you but at the outset or not could you be involved? you any scruples against Would have conscientious set aside your feelings just say, ‘Well, penalty punish- infliction of the death as a I’m going go ahead anyway it,’ ment for crime in proper and do case? or are those feelings so strong you’d ‘Well, say, I am not Yes, A: I do. going to be involved’? Q: Cox, deep-seated Mrs. is that such a just A: I don’t think I could. feeling you regardless that have that Q: And this is a pretty deep and firm you acting facts in the case personally that have; you conviction is that correct? juror as a could never vote to assess the penalty; is (Venirewoman death that correct? nods.)

A: Q: you going And are not to let A: That’s anybody correct. you conviction, talk out of that presume? I it, then, Q: I take Mrs. Cox that beсause Is pretty right? Something you be- feelings you of these you have and are lieve in you just going not to let them, you entitled to would automati- anybody talk you out of that? You are cally exclude the penalty death

going to you stand for what believe in? you sitting punishment? case were on as a (Venirewoman A: nods.) just You wouldn’t do it? Honor,

MR. STRICKLAND: Your A: I don’t think I could with all due challenge State would for cause on consideration. Honor,

MR. Your I SULLIVAN: case, object to that because the law Q: Regardless of the facts it, say doesn’t the death can be you about trying badger and I’m not jury. It’s an incorrect you voted the facts of the case regardless of but it; statement of the law. correct? just do is that couldn’t contributing THE COURT: Overruled. Well, I was I would feel A: wrong. and I think a death BY MR. WILSON: Honor, Your MR. WILSON: Q: So, juror you have qualified to be as a challenge for cause. got just say able to not if there is to be Challenge is sus- THE COURT: allows, well, punishment some that the law tained. couldn’t, you I couldn’t do that and if Cox, You you Mrs. are excused. us. There is a lot of now is the time tell home, 1086-87). (R. go now. back people can’t. No, I guess A: I I could because don’t VERNON D. MATTIE bring is a life. You can’t back mean a life Prosecutor) you have ... Do Q: (By just really know. I will be life. I don’t the death scruples conscientious honest. I don’t know. crime? punishment for penalty as a Yeah, Q: you you couldn’t be- think know. A: I don’t bring back a life? you cause could Q: Well, personally acting as a you could No, you A: couldn’t. way in such a juror vote would, would be inflicted? Q: you really would You then — conscientious, religious, or whatever have A: you What do mean? them, might scruples against call MR. object DICKENS: I will to that penalty, you? don’t being an improper question. The Yes, guess is whether or not I she would A: I would. unequivocally automatically vote Q: Ma’am? against every it in case. just, guess really A: I I not. I don’t THE COURT: Sustained. know, honest, I be- know. I will be don’t Q: is, What we need to know Mrs. Ver- through be- cause I have never been non, you personally could ever vote fore. I don’t know. way penalty to —in such a the death Q: thought sorry. you I’m I told me that feeling be your would inflicted or is such you just life and couldn’t be a life was a you personally could not do that in taking if it was involved ‍​‌​​‌‌‌‌‌‌‌​‌‌​‌​‌‌​​​​​​‌‌​‌​​​‌‌‌‌‌​‌​​​​​‌‌‌​‍in a life even case? jury verdict. A: I don’t know. I will be honest. I Really I I don’t A: am serious. don’t know. know. Q: Well, see, you asking the State is for Well, Vernon, Q: I am say, as I Mrs. penalty. why they the death That is made sorry push you, but we need to have to asking known that we are for the death that, you why if could not do now know and penalty. nothing is the time to tell us and there is going MR. I DICKENS: am to ob- wrong with it whatsoever.

ject. they It’s immaterial what No, A: I couldn’t. asking for. It’s whether or not she can Q: You could not? punishment. consider all the

THE COURT: Overruled. No, A: sir. BY MR. WILSON: Q: your telling appreciate And that is—I

Q: penalty And the death is one of the what kind you us and do tell us no matter penalties juror says you you that the law can be voted case it was if were the jury capital give penalty? in a case. the death couldn’t vote to procedure

Witherspoon involved a state jurors punishment selecting in for No. A: cases, jury sentencing did the where the Q: Okay. complete discretion as to whether and had it, Vernon, and that is an I take Mrs. imposed. be In should opinion you have. affirmative held that a state this context the Court Yes. A: death sen- constitutionally execute a not right. Q: All of all those by jury culled imposed tence challenge, Your MR. WILSON: during voir dire examination who reveal Honor. scruples against had conscientious they right. All THE COURT: Most of the veniremen penalty. the death granted challenge is allowed excluded with no challenged for cause were Witherspoon versus basis of on the scruples their to ascertain whether effort Illinois. against capital to vote compel them Vernon, are excused from Mrs. specifically defined The Court punishment. jury service. issue and noted: sixty-five (Whereupon, number Juror right prose- It not involve the does excused.) pro- challenge cause those cution purpose of MR. For the DICKENS: jurors state that their reser- spective who record, object going I am capital punishment about vations on the Mattie Vernon exclusion of Mrs. impartial making an prevent them from (sic) were less grounds questions her guilt. the defendant’s decision as to say did she unequivocal and never than Illinois, Witherspoon v. U.S. automatically vote she would has Supreme Court at 1772. 88 S.Ct. and, I every case cases Witherspoon in numerous considered (sic) I would grounds guess, on that handed original opinion was since judicial to take further ask Court expression recent The most in 1968.1 down lady. was a black notice she Adams v. is found Supreme Court Objection is noted. THE COURT: Texas, judicial notice Mattie does take Court written In L.Ed.2d (R. female. D. Vernon was a black making White, Court, ref- by Justice 1724-28). cases, stated: to this line of erence HUNTER, dissenting: Judge, District gener- of cases establishes This line juror may that a proposition majority opinion, from the al I dissent on his views based challenged for cause insofar as it concludes: those unless capital punishment about Harrison’s exclusion for cause “[TJhat substantially im- prevent or views would Witherspoon violation.” constituted a duties as a performance of his pair the developed in the trial are The basic facts his instructions with juror in accordance opinion Court set forth insist, how- and his oath. The State Appeals in of Criminal and decide ever, jurors will consider 933, 107, 97 cert. denied U.S. 552 S.W.2d conscientiously impartially and the facts 2642, disput 250. It is 53 L.Ed.2d S.Ct. charged by the court. law as apply the killing Granviel, separate ed that in two Don- venireman majority holds that The five women stabbed to death sprees, cause consti- exclusion the evi ald L. Harrison’s sufficiency of two children. The Witherspoon violation. guilty tuted a jury’s verdict of support dence concludes: challenged by anyone. is not Texas, 399, (1976); 478, Adams v. Holman, 50 L.Ed.2d 339 394 U.S. S.Ct.

1. Boulden v. 2521, 38, 65 L.Ed.2d (1969); U.S. 100 S.Ct. v. Bish- Maxwell 22 L.Ed.2d 433 op, 26 L.Ed.2d 398 U.S. (1970); Georgia, Davis v. excused, then, Harri- will be Mr. You fall far and answers questions “These (R. Harrison very of an affirmation much. you short Thank son.. against the vote automatically he would 711-12). evidence, penalty, regardless death With- application of the Straightforward punish- objections capital that his or in Ad- erspoon of cases as enunciated line making an him from prevent ment self-evident conclusion: ams leads me to one guilt.” as to impartial decision reservations about Harrison entertained record I analyzing the agree. In We cannot pre- would have capital punishment which pro- fully were rights appellant’s find that impartial deci- making him vented properly tected, Harrison was and that Witherspoon guilt.2 sion as to defendant’s to vote as to his commitment questioned precise questions no and answers. mandates The relevant penalty. the death answering follows: questioning applied is “not to be with the The test of a approach hypertechnical and archaic DONALD L. HARRISON book, Century with real- pleading 19th Prosecutor) Q. (By The defendant de- rationality.”3 While the mere ism and capital mur- charged this case is cannot contradict meanor of a venireman punishments two der. There are give words so as to them express murder and for the offense they opposition to that which meaning in peni- life in the that is either death or state, nevertheless, in those instances where tentiary. such as meaning apparent, elements Now, scru- you do have conscientious are relevant fаc- and tone of voice attitude ples against the infliction of message in- precise conveying tors for crime? punishment as a were judge and counsel tended.4 The trial means. A. I don’t know what that opportunity to observe present, with the Q. you you, personally ask if Let me Here, we Harrison. and further sitting juror, as a could ever vote so brought forth this express words think penalty? to inflict the Harrison’s attitude message loud and clear: No, I I could. A. don’t think pre- have capital punishment would toward feeling Q. prejudice definite That is a impartial deci- making an vented him from you would not you have facets of guilt sion on both the change? don’t feel like You Moreover, of the trial the trial. the action per- another would be entitled take excusing heard) in judge (who life in had seen and son’s that fashion. failure juror, appellant’s counsel’s nods.) (Venireman A. object, emphasize appreciation Q. Okay, you could not? present who were those Harrison’s A. No. I not. could concerning capital punishment views challenge, Your MR. WILSON: of his performance substantially impair the Honor. juror in this case. duties as a THE The defense have COURT: objections? exclu- whose were five veniremen There having mаjority, MR. We don’t have challenged. DICKENS: sion is questions. improperly ex- concluded that Harrison necessary to cause, not find it right. THE cused for did COURT: All Wallace, challenges Lipscomb, to discuss the chal- The feels that the State’s Court voir dire The relevant Cox and Vernon. lenge qualified for cause is in this reproduced supported by and evidence. examination of each cause the Swenson, 436, 444, 90 3. Ashe v. 397 U.S. S.Ct. involved in With- 2. This was the narrow issue 1189, 1194, 513, erspoon, 25 L.Ed.2d 469. at 1772 at 391 U.S. 512 522, 21, See also footnote 383-384 4. Tezono v. S.Ct. 1777. 1972). (Tex.Cr.App. something Lipscomb agony though pale that he would like a Appendix. only stated — of against imposition the automatically vote of shadow what must have felt by been Wallace affirmed that penalty. ghastly the victim of Burns’ crime—that in death penalty she did not believe the and we intervene to aside part set in the feelings strong were so that her that she operation policy procedures of state and could be involved. Cox no made aimed at preventing further atrocities of opposed it. She the “bones” about to this kind. Nor do we retreat an inch penalty death she would never to vote from our in Spinkellink observation equivocated assess it. Vernon when first Wainwright5 “the enjoys that Statе also questioned, concluding before that right impartial jury to an . and .. final she a analysis impose could not vote to impartiality requires not only freedom penalty. death Each ve- of these excluded jury against from bias the accused and “unmistakably it niremen made clear” that prosecution, for the but freedom from they could not abide law as jury bias for the accused and elated to death penalty. They were all, prosecution.” the prosecution After properly Witherspoon. thus excluded under speaks helpless degree some for Burns’ sense, larger emphasizes

In a this case pitiful just- degree victim and that en- frustration of states in their effort to ly right. claims constitutionally force their valid requirements Witherspoon But the punishment statutes. majority The holds clear, Supreme and the has Court that Witherspoon requires it to intervene equally made clear in later decisions set penalty episode aside in this grudging it will not their countenance or murder, which us the nature of all of ungenerous application. agree gruesome is so re- “gladly appreciate difficulty I endeav- repeating.” frain from I think the conclu- rule, synthesize precise a Witherspoon sion is completely support without on the conclude, hesitation, without a record. Supreme faithful observance of Court au- every right State Texas had thority require does not this court to inter- any juror insist that views on capital whose vene set aside the death in this punishment substantially impair case.6 performance juror of his duties deference, dissent, With I and would dis- excused cause. The State exercised petition entirety. miss the habeas in its right challenged jurors. five trial court imminently correct in sus-

taining challenge. each court,

In of this written

Judge Estelle, Gee in Burns v. 512 F.2d

1297 at language: we note this ‍​‌​​‌‌‌‌‌‌‌​‌‌​‌​‌‌​​​​​​‌‌​‌​​​‌‌‌‌‌​‌​​​​​‌‌‌​‍voicing cannot close without our

dissatisfaction the unfortunate result logic lights

to which and our on Wither-

spoon Indeed, have driven us. it is with ther; abruptly 5. 442 U.S. the trial court L.Ed.2d 649 “cut off’ further questioning. Here, he Harrison stated that did not think he could vote ever to inflict the death 6. An examination of the facts of penalty, Burns v. Es response questioning and in to further telle, (5th 1979), F.2d Cir. 626 F.2d agreed he could not vote to another take (1980), 396 en banc reveals clear distinctions. person’s psychoanalyze life. It is difficult to There, (Mrs. prospective juror Doss) testi person’s thinking, message but the Harri- presence fied that the unequivocal son contains what I consider to be deliberations, “affect” her with little or no indi avowals that he could vote for the death profound cation of how that effect be. penalty. Defense counsel desired to her fur-

Case Details

Case Name: Kenneth Granviel v. W. J. Estelle, Jr., Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 11, 1981

Citation: 655 F.2d 673

Docket Number: 79-1332

Court Abbreviation: 5th Cir.