Willie Jasper Darden v. Louie L. Wainwright, Secretary, Department of Corrections, State of Florida

CLARK, Before FAY and Judges, Circuit MORGAN, and Judge. Senior Circuit FAY, Judge: Circuit Willie Jasper appeals the district court’s denial of his habeas corpus petition challenging his conviction for degree first murder and sentence of death and raises issues;" three closing whether the argu- ments of the state prosecuting attorneys trial; denied a fair whether he received counsel; ineffective assistance of whether jury selection violated the mandates of Witherspoon v. Illinois. After careful consideration of the issues appeal, raised on we affirm the denial of petition for the writ of habeas corpus.

Background upon Based a series of events occurring Lakeland, at Carl’s Furniture Store in Flor- September 8,1973,1 ida on appellant Darden was charged degree with the first murder Turman, of Carl the robbery of Helen Tur- man and the assault with intent to commit murder of Philip Arnold. The trial jury found Darden guilty all three counts. (M.D.Fla.1981) The historical facts are set out in more detail and Darden 329 So.2d Wainwright, Darden v. (Fla. 1976). during the sum- procedure prosecutorial misconduct Pursuant the bifurcated improper prospec- excusal of (1973), 921.141 mation by Fla.Stat. § mandated magistrate jurors. Darden be sen- found recommended that tive claims, twenty-four The trial subse- includ- tenced to death. Darden’s other counsel, findings imposed the quently entered that of ineffective assistance ing merit. Both death sentence. were without constitutional objections to the and filed Darden the State of Supreme to appealed Darden Court report and recommendation. magistrate’s which convictions and Florida affirmed the State, v. 329 So.2d 287 the district court entered hearing, sentence. Darden After а Memoran- (Fla.1976). thorough The United its and well considered States magistrate’s rec- granted Opinion rejecting a for writ of certio- petition Court dum Florida, 917, peti- Darden’s rari, denying Darden v. 429 U.S. 97 and ommendations 308, Darden (1976), corpus. 50 282 and limited writ of habeas S.Ct. L.Ed.2d tion for the district appealed to considered to whether the the order of timely the issue raising de- issues for our considera- prosecution’s summation to three Dar- prived Darden of due of law. tion. 1036, 729, Florida, 97 den v. 429 U.S. S.Ct. During Misconduct Prosecutorial However, (1976).

50 L.Ed.2d 747 the Court Summation subsequently the writ of certiora- dismissed granted. v. improvidently ri as Darden contends remarks Darden 704, 1671, Florida, 430 51 U.S. 98 S.Ct. state attor made Florida assistant 2 L.Ed.2d 751 arguments during closing during the neys as to prejudicial so consti phase were After the a warrant for signed Governor due process. of his tute a denial execution, filed a petitiоn Darden’s argues that cross-appeal, the state On of for writ habeas in the district corpus Wainwright doctrine of procedural default A and stay court. execution entered 2497, 72, 97 53 Sykes, v. S.Ct. magistrate. the case The assigned bars our consideration (1977), L.Ed.2d 594 magistrate evidentiary hearing held an on prosecu of Darden’s claim 23, of the merits 22 1979 October and on Darden’s claim position is The state’s torial misconduct. of ineffective The assistance counsel. First, Dar merit for two reasons. his without magistrate report filed recom- object during twice of den’s counsel did petition mended that writ Second, corpus argument.3 granted prosecutor’s habeas on his claims of final weight. only thing closing argument The he hasn’t done 2. The state divided its be- attorneys Ray tween C. McDaniel and Norman is cut throat. that I know of his improper Honor, White. Most of the comments were Maloney: Your that’s about Mr. lengthy portion uttered the latter and more he has he wished fifth time that commented argument by of the McDaniel. Mr. Neither he shoot this man someone would prosecutor’s conduct was an ethical model Court would would kill himself. wish the worth emulation. what McDaniel to stick with instruct Mr. he has. little evidence sponsor, Mr. his 3. McDaniel: otherwise [T]his You Mr. McDaniel: don’t have girlfriend, pris- knew that he awas criminal — Maloney. yourself, Mr. oner, knew, sorry, prisoner; bring I’m let him right, gentlemen. All Proceed Court: gun into her house while was on your argument. Objection will be over- furloughs. weekend ahead, sir. ruled. Go Now, object. Mr. Goodwill: been There’s Record at 779-780. testimony this. no points testimony of Mr. While the state out the Record evidentiary hearing during in fed- Goodwill forget, please Mr. McDaniel: about [D]on’t assistance of coun- eral court on the ineffective gets Mr. five when Goodwill into foot six that defense counsel’s failure sel issue indicates eight, pounds, pounds, five foot 185 200 don’t may object have or earlier been more according forget what he has done to those decision, contradict this does not tactical witnesses, every attempt change make object, inartfully. did however fact that counsel 8, appearance September from hair, goatee, even the moustache 1034 Estelle, Houston v. 569 F.2d ly of Darden’s conviction and unfair.” appeal

direct 372, (5th Cir.1978). n. 8 Florida con sentence the the issue. It is well settled that sidered dispute There is no in this case that appellate adjudicat where a state court has ordinary prosecutor’s “the remarks under merits, may ed an issue on its federal courts a violation cirсumstances would constitute petition corpus. consider it in a for habeas Responsibility.” of Professional Code 371, 654 Stynchombe, v. F.2d 374 Sasson Darden v. 329 at 290. The So.2d (5th Cir.1981); Thompson v. 642 attempt “anyone district court noted that 996, (5th Cir.1981); Moran Es F.2d v. ing a text-book illustration of a violation 1140, telle, (5th Cir.1979); 607 F.2d Responsibility, the Code of Professional Alabama, 1211, 558 F.2d Cannon State 7-106(C)(4), Canon EC 7-24 and DR (5th Cir.1977), denied, cert. 1216 n. the exam possibly improve” upon could not 55 L.Ed.2d 792 provided during Dar ple prosecutor (1978). suggestion The state’s that the Wainwright, den’s trial.5 Darden v. 513 However, Supreme dispose F.Supp. inquiry Florida Court did not at our must 955. be whether the remarks denied prosecutor’s the on its merits is untenable.4 issue Wain Darden a fair trial. Fur fundamentally wright v. is therefore not a Sykes bar to our ther, it is “well established that in review of Darden’s claim prose consideration that ing prosecutorial possible for comments process. cutorial misconduсt denied him due prejudice, a court must not consider corpus petition, On a habeas comments in must our isolation. The comments only of review of the evaluated the context not of the prosecutor’s standard com prosecutor’s entire closing argument but ments at trial is “the narrow one of due the trial as a Wainwright, whole.” Cobb v. and not the broad process, exercise su (5th Cir.1980). 609 F.2d 755 n. 7 power that pervisory appellate [federal regard possess own trial courts] [their] rule,6 Because of a state Dar- procedural Donnelly DeChristoforo, 416 court[s].” den’s trial counsel had the opportunity to 637, 642, 1868, 1871, 94 40 L.Ed.2d present the initial summation as well as “In order for a state habeas rebuttal to the prosecutor’s closing argu- corpus petitioner prevail on a claim that Thus, ments. the prosecutors’ comments imprоper jury argument marred his tri must be considered in light of the defense al, the asserted error must be one of consti attorney’s initial summation which concen- magnitude. tutional This ‍​​‌‌​​‌‌‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​‌​​​​‌‌‌‍means that case, trated on the lack of evidence in the prosecutorial remarks must be prejudi so placing blame for this lack on the Polk cial they that render trial fundamental- County Sheriff’s Office.7 The defense ar- Supreme engaged 4. The Court of Florida in a specific 5. The district court had reference to lengthy page analysis prosecu- prosecutor’s expression several personal of his concluded, opinion regarding guilt: tor’s conduct which “Our review of the record convinces us that the remarks com- convinced, I am as convinced as I know I am plained deprive Appel- not of were sufficient standing you today, Jаsper before that Willie totality lant of a fair trial when the of evidence murderer, Darden is a that he murdered Mr. is considered.” Darden v. 329 So.2d at Turman, that he robbed Mrs. Turman and 291. The state Court thereafter noted Phillip that he shot to kill Arnold. I will be single paragraph previ- in a short it had my convinced of that the rest of life. ously prosecutor’s challenged argu- F.Supp. held that a at 955. appeal only ment will be reviewed on when a Procedure, 6. Florida Rules of Criminal Rule timely objection is made. Id. We therefore (1973) provided 3.250 that “a defendant offer- agree with the district court ing testimony behalf, except no in his own “clearly Court of Florida entertained and deter- own, concluding argu- shall be entitled to the mined the fair trial issue on its merits as the jury.” ment before the primary F.Supp. basis of its decision.” at (5th 952. Ratcliff v. 597 F.2d 474 Cir. Judge going 7. The to tell to consider 1979) compel does not a different result. the evidence or the lack of evidence. We evidence, criminally have a lack of almost at thing improper. 952. penalty,8 to the death alluded gument also place prosecutors attempted blame of an “animal” as introduced the idea state’s for the crime on the Division of of the crimes9 contained perpetrator Darden was on furlough Corrections since personal opinion.10 offense, at the time of the often implying closing delivered re- prosecutors then be the penalty only would noted, which, marks as the district against a future similar insurance act.11 candidly no one even state has asserted defense, prosecutor’s argu- Like weakly suggested any- has ever even ment used word “animal”12 and con- prison they go negligent pаrt County in a when there? Can we of the Polk on go expect stay up they go You on once Sheriffs in this case. could them to locked Office they’re going and on there about it. We all know has been Do there? know that to be we expert testimony. guns, drinking? no public out on Record at 728. Record 749-750. No, person persons responsi- I wish that people just putting You would in time public being ble for on in the putting and so I’m would I. But in time. doorway pray Turman. instead of Mr. putting in time haven’t been for the last five person responsible for it would have been years, they They don’t have because it. doorway in that re- They didn’t bother to do it. took a coinci- it, sponsible that he had wish been the they magnified capital dence and that into a one shot in the mouth. wish he had asking case. And are kill a man neck, been the in the instead of the one shot cоincidence. boy. Record at 730. See also note 10 infra. Yes, Defendant, there is another but I re- just briefly I intend to summarize the evi- gret charges place upon that of no to know you. going dence that has been before I’m him, public except the condemnation of attempt objective possible. to be as as The them, condemn them. Turn them loose ... you Turman, first witness that saw was Mrs. Record at 750-1. pathetic figure; who was a who worked and prisoner. supposed He is a He is to be. struggled all of her life to build what little she Mr. of that Turman is dead because unknown had, store; the little furniture a woman defendant have in the courtroom we don’t robbed, assaulted, sexually who was criminally negligent for allowed it. He is slaughtered then had her husband her before allowing it. eyes, by what would have to be a vicious Record at 752. animal. give you I will аsk to advise the Court to Record at 717. only way him that I know him, death. That’s the And this murderer ran after aimed going get public. again, poor that he is not out on the and this kid with half brains his only only way way away. away, again the blown It’s the I know. It’s Fires him in hits only back, way keeps running. the can be sure of it. It’s the and he on Mrs. Hill now, yards anybody collapsed said ran 500 before he sure of it because the can be people front of her house. It’s the work of an ani- that turned him loose— mal, no doubt about it. there’s Record at 753. trial, person Record at 731-2. There is on not the Polk Hillsborough one County Office, not the Sheriffs up they So come on here and ask Citrus Office, keepers, Sheriff’s but he and the County people to kill the man. You will Division of Corrections. lesser included instructed on offenses. Record 764-5. you boring. think find it rather The will help I cannot that the but wish Division is, question they enough have do sitting in the chair with him. Corrections was man, enough kill estly evidence? I hon- And you. Thank you do not think do. Thank for Record at 782. your time. Record at 736-7. concerned, and 12. As far as I am as Mr. Maloney something. said as he identified this man as an you As as I 11. But let me tell far animal, public the one concerned, this animal was on for am De- there should another courtroom, more, reason. in this one and that fendant corrections, prisons. Record at 749. is As the division of concerned, Maloney But I am that I want remember sure far as I am and as Mr. statement, man, Maloney’s opening opening person Mr. this said as he identified this argument animal, this an ani- public when he called this animal was on guaran- that, I will mal. Remember because Because the division of correc- reason. loose, out, There no for death. tee will ask lets him lets tions turned him stay expect it. public. about on we him to out Can basis of the opinions.13 pros- prosecutorial other summation rea- personal tained soning: which resorted to some statements ecutor be described as tasteless and un- only

can in- prosecutor’s argument did not attorneys then had professional.14 manipulation volve a or misstatement of prosecutors’ rebut opportunity implicate it evidence nor did closing argument.15 final statements on the specific rights of the accused such as the right to counsel or the to remain prosecutors’ comments While the silent; objectional most of the content ap have reversible error in an would been responsive was invited or was case,16 from a federal criminal this case peal defense; opening summation petition by prisoner is befоre us on a a state on two occa- Court instructed corpus pursuant for writ of habeas to 28 was argument sions that the of counsel inquiry 2254. Our is therefore U.S.C. § decision was not evidence and com prosecutorial limited to whether to be made on the basis of the evidence prejudicial ments were so as to render the alone; challenged argument was unfair as a matter of fundamentally presented objection; without the defense law. Houston v. constitutional through presen- had the “last word” at 378. The United F.2d States argument; tation of rebuttal has noted that “the of consti weight of the evidence against the Peti- drawing regard tutional line this is nec indeed, tioner heavy; imprecise.” Donnelly v. essarily DeChristo Court of Florida said there “was over- 637, 645, foro, whelming eyewitness and circumstantial enough 40 L.Ed.2d 431 It is not evidence to suppоrt finding prosecutors’ remarks were undesirable charges all ...” Darden’s trial was not or even universally condemned. Cobb v. perfect are—but neither was it fun- —few Wainwright, 609 F.2d at 754. A defect of damentally unfair. constitutional proportions is not to be found at 958. and footnote [citation egregious cases. Houston v. Having considered prosecu- omitted]. Estelle, 569 F.2d at 382. tors’ remarks and evaluated them in light The district court concluded that ha trial, of Darden’s entire agree we with the corpus beas relief was not warranted on the district court’s prosecu- conclusion that the Record at 753. I wish he had been [Darden] killed accident, Again, but he wasn’t. we are un- e.g., supra. 13. See note 5 lucky that time. Record at 14. He shouldn’t be out of his cell unless he forget prison guard has a leash on him and a what he [d]on’t at the has done [Darden] according witnesses, every end of that leash. to those to make Record attempt change at 750. appearance Sep- to from shotgun 8th, I wish hair, had goatee, [Mr. had a in his Turman] tember 1973. The hand when he walked in the back weight. door and even the moustache and the blown his face off. only [Darden’s] wish I could thing he hasn’t done that know of is sitting face, see him here with no blown cut his throat. away by shotgun. a Record at 779. Record at 758. 1 wish someone had walked in (5th the back door 15. Cf. Houston v. 569 F.2d 372 point. and blown his head off Cir.1978), at that where the noted that the de- lucky, public unlucky, But he is people longer respond prosecuto- fense could no unlucky, are happen. it didn’t argument except by objection pros- rial Record at 759. prejudiced right ecutor had of defendant to boy’s back, fired in the [h]e number five object impermissible ‍​​‌‌​​‌‌‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​‌​​​​‌‌‌‍by implying to comments saving get one. Didn’t a chance to use it. trying that defense counsel were to take the wish he had used it on himself. away jury. Id at 377. case from the Record at 774. Again, And Mr. Darden saved one. wish Corona, e.g., 16. See United States v. 551 F.2d had used it on himself. (5th Cir.1977). 1386 Record at 795.

1037 nois, 510, a 391 deny 1770, tors’ fun- 88 comments did not U.S. S.Ct. 20 L.Ed.2d fair (1968). trial. damentally magistrate 776 recommended petition that for habeas corpus be Ineffective Assistance of Counsel granted on the basis of the excusal veni- he was de- appeal, On Darden contends repersons Varney Murphy. and The district nied his sixth amendment to the ef- and disagreed held that each “[i]n during fective assistance of counsel instance, jurors interrogated were as to phases and of his penalty trial. After they whether would be ‘un- ‘unwilling’ or evidentiary an hearing, magistrate is- able’ to recommend a death ‘re- sentence sued report reject- and reсommendation gardless ‘regardless facts’ or ing Darden’s ineffective assistance of coun- jurors evidence.’ The who were excused sel claim. The district court likewise found gave responses affirmative to ‘hard’ those no merit in Darden’s claim. questions they were dis- properly missed.” 513 at 962. It is well settled that the standard to applied evaluating ineffective as Witherspoon been has interpreted sistance of counsel claims whether coun applied plethora in a of cases. It is sel was to “reasonably likely render and did well settled has power state render reasonably effective assistance of execute a defendant sentenced Ellis, 592, counsel.” MacKenna v. 280 F.2d by a from only which the veniremen (5th Cir.1960), 599 banc, adhered to en 289 who were in fact excluded cause (5th Cir.), denied, F.2d 928 cert. 368 U.S. those (1) who made unmistakably clear 877, 121, 82 S.Ct. 7 L.Ed.2d 78 would vote automatically Whether counsel has rendered adequate as against imposition capital punish sistance is a mixed law fact regard ment without requires the application legal princi might developed at the trial of the ples to the historic Cuyl facts the case. them, (2) case atti before Sullivan, er 335, 341-42, v. 100 pre tude toward the death penalty would 1714-1715, S.Ct. 64 L.Ed.2d 333 vent them from de making impartial (1980); Zant, Young v. 677 F.2d 798 guilt. cision as defendant’s (11th Cir.1982). The assistance rendered must be evaluated from the perspective of Texas, 38, 44, S.Ct. Adams v. U.S. counsel, taking into all account the circum 2521, 2526, (1980), quoting 65 L.Ed.2d 581 case, stances of the only as those cir 522-23, Illinois, Witherspoon v. cumstances were known counsel at that original). n. at 1777 (emphasis time. Proffitt Wainwright, 685 F.2d Witherspoon nor Adams Neither (11th 1227 at Cir.1982). req courts a formula or provides trial Wе have carefully examined the for excusal of colloquy proper uisite record in this case per and find that jurors Witherspoon grounds. prospective formance of attorneys, Darden’s defense Instead, judge decide wheth the trial must during either the or penalty phase of has it particular venireperson er each made trial, did not fall below the “reasonably with clear” or she is “unmistakably that effective assistance” standard. Witherspoon. two of prongs in one of the position is in best judge The trial

Jury Selection juror’s demeanor prospective evaluate the this Darden contends con- For questions. which and answers reason, victed generally recommended the are accorded judges trial impar penalty evaluating juror failed to a true section in include cross broad discretion 717, Dowd, tiality. See, Irwin v. 366 U.S. community prospective because two (1961); jurors 1639, 6 United L.Ed.2d 751 improperly excused for cause 81 S.Ct. (5th Robbins, 650, because 500 F.2d scruples against the death v. States greater even Cir.1977). in v. Illi- This tenent has penalty Witherspoon violation of you my ques- mendation? Do understand present such as in a situation efficacy reviewing tion? appellate one —a federal court on a of a federal district Honor, decision pursuant Your MR. MALONEY: alleging con corpus petition 2254 habeas I object I filed beforehand

§ to the motion trial. The state error in a state stitutional I believe that it is irrel- question. to this entitled to a findings factual are court’s I evant to the matter at hand and think of correctness. Sumner presumption at this the discussion of this time Mata, 101 S.Ct. to a fair prejudices the defendant’s Nevertheless, close L.Ed.2d trial. impаrtial examinations of of the voir dire ‍​​‌‌​​‌‌‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​‌​​​​‌‌‌‍scrutiny right, THE All sir. Motion will COURT: jurors necessary to insure prospective objection overruled. be denied and the to the mandates of Wither- strict adherence such right, Macy, you All Mrs. do hold Estelle, See, 655 F.2d Granviel v. spoon. religious principles conscientious moral or (5th Cir.1981); Burns v. penalty you the death opposition in banc). (5th Cir.1980) (en 626 F.2d 396 Such any under circum- unwilling would be not, cold record must how scrutiny of the recommend the death sen- stances to jurors ever, prospective the words of treat tence? floating icebergs unrelated to the as free No, sir. MACY: MRS. examination as a whole. The voir dire you, Blankenship? THE Do Mr. COURT: and Mur Varney statements of veniremen No, sir. MR. BLANKENSHIP: statements, like all must be examined phy, Mr. Pelellat? THE COURT: interpreted in the context which No, MR. PELELLAT: sir. they occurred. Spike? THE Mrs. COURT: court,17 As noted the district the state Nо, sir. MRS. SPIKE: was judge cognizant Witherspoon. Yes, MR. VARNEY: sir. dire, During explained voir the trial court then, sir, THE COURT: You feel “capital punishment feature of the though saying even and I am not it will it (R. 42) following case” colloquy purely speculative, would be the event occurred: be the evidence should such that THE going COURT: Now am to ask legal that should be the under the law you individually each of the same ques- you unwilling recommendation would be tion so listen to me carefully, want to return such a recommendation because know if any you strong have such your conscientious beliefs? religious, princi- moral or conscientious MR. VARNEY: I believe I would. ples opposition penalty to the death All sir. You will right, THE COURT: unwilling would be to vote to excused. advisory return an sentence recommend- ing though the death sentence even the objection. MR. MALONEY: renew presented facts shоuld be such as challenged do not think he should be require under the law would that recom- cause. my ruling prospective juror It should first be observed that the trial It is if a states fully conscious of the existence of on his voir dire examination that because Witherspoon moral, religious decision. That is clear be- of his or conscientious unwilling specific pretrial principles cause the record he would discloses a and belief penalty though to recommend a death even discussion the case. Defense counsel the facts and circumstances meet the re- made a motion to exclude examination of law, quirements prospective jurors concerning of their attitudes then he in effect has penalty unwilling about the death because of the bifur- said he would be to follow it or if citing Witherspoon; issue, it, gоing against cation of that he did follow it would be ruled, and, therefore, quite properly, principles, the trial that the I would rule since, disqualification. motion would be denied in the event of that would be If that ex- conviction, ists, disqualify (Em- jury I for same would then con- intend cause. punishment. phasis supplied). sider the issue of The Court (R. 18): also remarked at 959. sir, THE Yes, objection will seminary

THE COURT: COURT: What were you with, sir? overruled. noted and Píos, Uniondale, MR. MURPHY: St. will be ex- New right, Varney, you All Mr. York. very your much for you cused. Thank THE any

service. COURT: Do have you moral or religious, moral or religious conscientious proceeded trial court and counsel then The principles opposition pen- death other prospective the examination of with alty strong so you would be unable comprises of which transcription jurors, without violating principles own your the record. Dur- pages over hundred vote to death penalty recommend a re- interim, venirepersons ing this three other gardless of the facts? Witherspoon excused for cause Yes, MR. MURPHY: I have. juror prospective The last to be grounds.18 sir, THE COURT: All right, you will be Murphy: so excused was excused then. did do you prior THE COURT: What (Mr. box.) Murphy jury left the retirement, sir? at 165. R. jobs. MR. MURPHY: I was Several

eight and a half the administra- years The state trial did not violate seminary, tion office in a before that I Witherspoon mandates of in excusing the utilities. thirty years prospective jurors. All excused venire- not; Venirepersons Mays, question you and Maher were or Cam is whether or not excused. strong have such a disbelief in it as to Hann, you you THE COURT: Mrs. do hold such make it to vote unable to return a strong religious penalty moral or conscientious be- recommendation of the death gardless re- you unwilling any liefs that would be under might of what be. event to return a death sentence? right. Ms. Cam: That’s No, Mrs. Hann: sir. right, The Court: All ma’am. Then we will The Court: Mr. Waller? you appreciate excuse then now. No, Mr. Waller: sir. your candor. The Court: Mr. DeMilt? Honor, Maloney: again Mr. Your once I ob- No, Mr. DeMilt: sir. ject. I don’t think that is relevant. Dorminy? The Court: Mr. Objection The Court: bewill noted. No, Dorminy: Mr. sir. (Ms. jury box.) Cam was excused from the The Court: Mrs. Keck? R. at 106-107. No, Mrs. Keck: sir. The Court: I have the others and I will asked The Court: Mr. Roberts? you you ask each of the four whether No, Mr. Roberts: sir. strong religious have such conscientious or Mays? The Court: Mr. principles imposition against moral Mays: Mr. Yes. could recommend it. you penalty the death would be unwill- right. The Court: All ing to vote to return recommended sen- excused, Mays. You will be Mr. Mr. Malo- regardless penalty tence of the ney, you objection I assume wish the same might what the evidence the facts apply be? to him. you Pigeon? Yes, Would Maloney: Ms. Mr. Honor. Your Yes, Pigeon: Ms. Court: So sir. recorded. (Mr. Mays jury box.) was excused from the Mr. Court: Wall? No, R. at 45-46. Mr. Wall: sir. Cam, your The Court: Ms. fact husband you, The Court: Ms. How about Maher? police for a while was a officer and the fact Yes, Ms. Maher: I do have such convictions. many that we have here listed witnesses Day I am a Seventh Adventist. police deputy officer and sheriffs conceiva- The Court: And no what matter the evidence bly problem. could raise bit of a a little Do you you showed don’t think would vote for you your think that because husband’s it? previous occupation you might be a couldn’t, Ms. Maher: I sir. give say little inclined to what the officers well, Very objections The Court: over weight you more than would defendant she will excused. witness didn’t know? (Ms. Maher was from the excused would; Ms. Cam: don’t think that but do box.) capital punishment. not believe in R. at 109-110. isn’t, ma’am, The Court: The capital punishment whether believe in to a fundamen- defendant is entitled Every answered that unequivocably persons trial, without reference to the fair tally “unwilling any under circumstanc- would be na- the evidence or heinous weight of violating” prin- their without es” or “unable defendant re- crime. When a ture of the penalty.19 the death to recommend ciples af- penalty, uncorrectable ceives the death facts of this specific In the context execution, of the rule becomes the force indul- ter repeated court’s case, the trial and de- When the defendant’s apparent. more the state- Witherspoon inquiry, gence in the misidentification, the are alibi and fenses rendered venirepersons ments of mistake has such a uncorrectability of a Witherspoon. under proper excusal the harmless doctrine consequence Conclusion scrutinized when it is clear closely must be the sen- the error could have affected closing arguments found that the Having tence. attorneys did prosecuting of the state trial;20 Darden a fair deny arrested, From the time Darden was counsel; assistance received effective sentencing, he throughout his trial and did not jury selection and that The evidence maintained his innocence. Witherspoon, violate the mandates the identifica- which convicted Darden was petition denial of the district court’s Turman, widow of the by tion of him Mrs. is corpus writ of habeas Arnold, murdered, who was Philip man and days the killer. Four after by shot AFFIRMED. funeral, day Mrs. crime and after state, Turman, went distraught while in a CLARK, Judge, dissenting: Circuit hear- preliminary to the courthouse for the court’s agree I cannot with the district ing where she identified the defendant funda- conclusion that Darden’s trial was very killer. Darden was in a her husband’s constitutional fair as a matter of mentally cell; holding adjoining small courtroom assuming that fair means law. I start person at the defense only he was the black justice; free by honesty “characterized table; an indication that he and there is fraud, or favorit- injustice, prejudice from in the room. The only was the black ism; Webster’s typical, representative”. him and asked Mrs. prosecutor pointed to Dictionary, 1976. Third New International it, the man who did Turman if this was “fundamental” refers further assume that All of this was responded yes. which she trial, as an of a such the basic elements objection of Darden’s coun- over strenuous to coun- impartial judge sel.1 sel, criminal defendant every to which witness identification was eye The other the evidence in case. regardless entitled Arnold, Philip who was shot at fundamen- made way, a trial lacks Stated another was killed. The crime which time Mr. Turman tal error is committed fairness when 8, 1973. Arnold testi- September doubt. occurred a reasonable beyond is not harmless We do not understand the comment in agree court that venire- 19. We with the district relating subjunctive Judge Varney’s subsequent to the Florida state- Clark’s dissent man object being equivocation failure to as not Public Defender’s ment “I believe I would” was not decision. The record discloses that a tactical in the context of this case: object, recog- counsel did which we noted, however, Varney It must be that Mr. Further, 3, supra. Footnote the Florida nize. yes gave unqualified first question in answer prosecutor’s Court did consider the ‘unwilling un- whether he would be arguments, closing and the merits of all issues any der to recommend the circumstances The Florida raised in connection therewith. his affirmative death sentence.’ Because of response rely upon any lack of Court did not pressed subject the Court contemporaneous objection nor other rule declared, again, T another and he procedural default. Nothing believe I quired. more was re- would.’ subjected juror to voir A should be 215-23, pro- Corpus Transcript at Habeas examination, dire not cross examination. seq. ceeding et at 962 n. 18.

1041 (footnote omitted). At 1034 Numerous ex- had seen 18, He January 1974. fied on of the during previ- amples improper argument the are set courtroom in the Darden been shown opinions Arnold had ‍​​‌‌​​‌‌‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​‌​​​​‌‌‌‍out in the of the Florida days. ous two after the days a few Court, court, of Darden photograph the district and the majority photographic iden- group of a part opinion. crime was of which procedure,

tification this is a death case and there is Because is trial court. It by the state suppressed prejudicial argument affecting grossly one the identification whether impossible say sentencing, escape I cannot" the conclu- Arnold byor by photograph was tainted argument that this had a fundamental- sion courtroom, but Arnold Darden in the seeing impact upon the result. After ly unfair who was Darden as the identify did improper argument that he making immediately Turman in the store with Mrs. his death that the de- would believe until her husband was shot.2 after guilty, was and that the corrections fendant through dire examination From the voir furlough released Darden on officer who impressed argumеnt, jury closing from the corrections institute should also be of the identification with the seriousness murder, prosecutor on trial for further accepted validity They issue. stated: Darden of first- identification and convicted request trial I will part The second of the murder. The recommendation degree I will impose penalty. the death was not by jury the death sentence give ask to advise the Court jury know what the unanimous. We do not only way That’s the know death. between 7 to 5 and 11 to 1. count was going get out on the is argument prejudicial I believe the Because only way It’s the I know. It’s public. jury impact upon had an counsel I can be sure of it.... beyond only way not harmless a reasona- which was and did affect their deliberations ble doubt State, 287, (Fla. 329 289 Darden v. So.2d penalty, I dissent. respect 1976). part of this purpose The sole mis- prosécutoriаl A short review of the argument was to convince prosecutor’s the dis- by is As stated necessary. conduct dangerous officials release prison this stages proceed- “At all trict court: only be safe public and the could offenders that ‘no candidly state has asserted ing, the Darden’s execution. if recommended suggested that weakly one has ever even a fair trial. Defendant was denied any- prosecutor’s] closing remarks [the facing appel- tasks One of the hardest thing improper....’” reviewing a claim of judge late constitu- 947, (M.D.Fla. Wainwright, 513 952 corpus pro- in a state habeas tional error say has this to 1981). majority opinion is more acute when ceeding. problem misconduct: prosecutorial about the may where the error there are instances dispute is no in this case There a reasonable doubt and beyond harmless ordinary remarks under prosecutor’s “the may where it not be. Comments others a viola- would constitute circumstances considering in helpful appellate to an Responsi- of the Code of Professional tion appellate subject of harmless error Darden v. 329 bility.” So.2d found in Kotteakos v. United review are “any- The district court noted that States, 750, 66 90 L.Ed. 328 U.S. S.Ct. a text-book illustration of attempting (1946), as follows: 1557 of Professional a violation of the Code judgment each analysis In the final 7, EC 7-24 and DR Canon Responsibility, by influenced conviction re- case must be improve” 7-106(c)(4), possibly could not proceed- sulting from examination of the prose- example provided upon entirety, tempered but not ings in their trial. during Darden’s cutor Wade, 218, 233, discussing United States v. various review of cases 2. For a 1926, 1935, possibility 18 L.Ed.2d S.Ct. of identification methоds methods, suggestibility see inherent some 824, 17 said case: 328 U.S. at omitted). errors, the fundamental rule is found in 1247-48, Chapman less-error rules can error bidden, the question of guilt or harmless-error practices highly important and persuasive evi- With mischievous out record. close one. What harmless-error rules all den was on trial for his life and his defenses in our ror Court in dence, aim at is a rule that will factors in lished the their error may tion. This is the setting. ence, standing allowance for how others not sense of ers’ its what effect the error had asserted sion situations. outcome, decision. The crucial of the governed sis In criminal causes guilt In fashioning a harmless-constitutional- This the following ... We effect reason. This ^[******] bad, proceeding, reactions happened. be taken to have had judgment, L.Ed.2d 705 rule, meant in men, respect by thing regarded 90 L.Ed. at 1565-1566 finds its must what has the case as so fact. deciding alone, the upon recent case of argument, judgment. California, 762, 764-65, we must recognize that harm- not on far as prefer casting the Necessarily results done is, judgment take account of what the not different, to harmless constitutional easy them, comes It which is applicable to this but what the verdict. regardless of generally And one must way rigid not were is (1967), by what wrong possible. that outcome is convic- is one’s been done in similar relation of the error work a to ignore when, guilt into a trial in which though whole, not is at stake thing sense strongly relation to all approach 66 S.Ct. at important was harmless balance or own, the Fahy save where very might on the minds of singled while upon innocence in own, laymen. may they right or reasonably is character of are material acting legally the error or It is rather in law, unfair and v. State stare when the from the the court react and (citations example, but with be, for deci- avoiding upon 87 S.Ct. out good of this impact differ- estab- jury’s with- from total deci- is a And oth- for- else er- its in tion day furlough from the correctional institu- upon the result. Darden was on a three- from which he anticipated were alibi and identification. nature of the crime should have no affect an early Darden v. ion, affirming the conviction and comment: tributed to the flammatory and prejudicial argument. The showing that the error pressed state offered no was alty, where the majority opinion has this harmless. [comments] Darden’s L.Ed.2d “there is a comment. This comment was fair. nous set if it had been would have possibly been reversible error jury adversely My concern is highlighted by a view ex- An dence or er burden (footnote omitted) tainly gally admitting highly for reversal. At the same like Fahy, tion is whether there is a reasonable tion can never be treated as harmless error, late the Under evidence which harmless those constitutional errors that “affect though that there are some constitutional emphasizes an intention not to treat as any belief that so basic to a fair trial might have contributed tion.” sibility L.Ed.2d Connecticut, was than error the committed the language this statement in be conceived error, Id., at substantially federal our substantial comments, 710 (emphasis the person prejudiced Constitution complained of reasonable in admitting 22-24, at Chapman crimes. The law show that Florida the evidence prior to be tried constitutional 86-87, There we said: “The used to a [conviction So.2d 329 used all harmless-error possibly cases have indicated litigant cannot, casts on regarding rights” crime, S.Ct. at affected possibility 85, 84 as harmless. Cer- automatically it was added). Fahy errors which might plainly relevant by prejudicial Fahy standard, influenced the time, however, complained or error, someone an impartial the heinous their infrac- permits of a at the convic- itself belies If another sentence].” 290. Dar- 827-28, prosecutor by statute, have harmless, less by the in- in ille- party. rights under ques- opin- pen- it con- oth- pos- hei- fair vio- evi- call Al- it the Witherspoon issue on ground that the prosecutor’s argument parole. jurors given not the opportunity letting Dar- committed a crime in state had den out way to “make unmistakably clear” their inabili- furlough only- on a and that ty to be impartial notwithstanding their correct that to execute problem respect views with to the death penalty. upon this certainly impаct had an jury- also had my opinion It that Darden ON FOR PETITION REHEARING AND assistance of counsel reason ineffective of his FOR PETITION REHEARING prejudi attorney objecting EN BANC argument. This is a cial ineffectiveness GODBOLD, Before Chief Judge, and RO the denial of Fourteenth part of NEY, TJOFLAT, HILL, FAY, VANCE, Amendment right to due His at process. KRAVITCH, JOHNSON, HENDERSON, an assistant Florida Public Defend torney, er, CLARK, ANDERSON and Circuit Judges.* proceed at the habeas explained corpus to the ing purposely object did not BY THE COURT: so that he could an error argument preserve A member this Court in active service clearly against This was appeal. having requested for poll a on application best interests reasoned client’s and not a en banc rehearing and a majority of the. decision in con light tactical of Florida’s judges in- active service having voted in temporaneous objection rule which was re fаvor granting banc, a rehearing en in its in 1967 modern-day affirmed version a Florid by the Court of Florida in IT IS ORDERED that the cause shall be Jones, 204 At (Fla.1967). page v. So.2d515 reheard this Court en banc with oral 519, the court since the commented that argument on a date hereafter to be fixed. case and the counsel appointment Gideon The Clerk specify will a briefing schedule indigents, are rights to defend well “their now for the en filing of banc briefs. guarded by defending counsel.” on to say court went court would not consider subsequently assignment improper prosecu error argument of the objection tor unless an for mis and motion timely

trial were made. prosecutor In this case the conducted highly inflammatory prejudicial argu- against defendant, ment his ineffective failed to object, counsel trial permitted this inappropriate conduct Smith, Betty Suе Alton SMITH lawyers go Yet, two unabated. the State Plaintiffs-Appellants, arguing objection the contemporaneous rule, upon relies Florida Court v. continuing to [indigent hold that “their de- AUTHORITY, VALLEY TENNESSEE rights are now guarded well fendants] Defendant-Appellee. defending process counsel.”3 Darden’s due were not rights guarded well in this case. No. 81-7267. through state erroneous actions of its defender, state prosecutor, employed public of Appeals, United States court, trial deny and state combined to de- Circuit. Eleventh his due fendant funda- fair mentally pursuant Four- Feb. teenth Amendment. cannot These actions to be light said harmless in facts case, defense, in this bases of the the sentence of death. In addition to dissenting on the issues of prejudicial argument of and inef- counsel counsel,

fectiveness defense I dissent on * State, 363 was reaffirmed in Clark Judge Jones disqualified ‍​​‌‌​​‌‌‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌​​​​​​​​​‌‌​‌​​​​‌‌‌‍par- Hatchett and did not 1978). (Fla. ticipate So.2d in this decision.

Case Details

Case Name: Willie Jasper Darden v. Louie L. Wainwright, Secretary, Department of Corrections, State of Florida

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 6, 1983

Citation: 699 F.2d 1031

Docket Number: 81-5590

Court Abbreviation: 11th Cir.