*1 SECRETARY, WAINWRIGHT, FLORIDA DARDEN OF CORRECTIONS DEPARTMENT January 13, 1986 Decided June Argued No. 85-5319. *2 J., J.,
Powell, opinion Court, delivered the Burger, which C. JJ., J., and White, Burger, joined. C. Rehnquist, O’Connor, J., concurring opinion, post, p, filed a a dissenting Brennan, filed 187. opinion, post, p. J., opinion, Blackmun, dissenting filed a in which 188. JJ., joined, post, p. Brennan, Marshall, Stevens, Augustus argued Harper, Jr., Robert the cause and filed petitioner. briefs for Attorney Prospect, Flor-
Richard W. Assistant General of respondent. argued him on the cause for With the brief ida, Attorney Smith, General. was Jim opinion delivered the the Court. Powell Justice questions concerning presents validity This case three (i) petitioner’s criminal conviction and death sentence: whether the exclusion for cause a member the venire principles Wainwright Witt, announced violated (ii) (1985); prosecution’s argu- closing U. S. whether the during guilt phase trial ment of bifurcated rendered *3 fundamentally deprived trial unfair and the the sentenc- reliability required by Eighth ing determination of the the (iii) petitioner Amendment; and whether was denied effec- sentencing phase of tive assistance of counsel the his trial. h—I guilty robbery, murder, Petitioner tried and found of kill assault with intent to in the for Citrus and County, Circuit Court January in 1974. Pursuant Florida’s Florida, jury peti- sentencing capital the statute, same that convicted testimony argument and in heard further order to tioner nonbinding as to a death make recommendation whether imposed. jury recommended a death sentence should be judge and the trial followed that recommendation. sentence, appeal, Supreme the Florida affirmed the On direct Court of and the sentence. Petitioner made several the conviction appeal arguments in that he makes same here. With prosecutorial respect claim, misconduct the court dis- to the closing argument, approved but reasoned that the law “only required it reason- those cases which is a new trial jury ably might the remarks have influenced evident that guilt reach verdict of ... or which the a more severe 2d 287, Darden 329 289 State, is unfair.” v. So. comment (1976). the comments had rendered It concluded that
171
petitioner’s
challenge
juror
trial unfair. Petitioner’s
to the
rejected
exclusion was
without comment. Petitioner did not
at that time
his claim of
of
raise
ineffective assistance
coun-
granted
(1976),lim-
sel. This Court
917
certiorari,
S.
grant
prosecutorial
ited the
to the claim of
429
misconduct,
(1977),
argument,
U.
1036
heard oral
and
S.
dismissed
(1977).
improvidently granted,
writ as
I—I h-H petitioner claims, nature s the Because the facts normally in more this case will be stated detail than is neces- September sary in this On 5:30 8, 1973, Court. about p.m., black adult male entered near a Carl’s Furniture Store only person The in the Lakeland, Florida. other store was proprietor, Turman, the Mrs. who lived with her husband nights a Mr. Turman, house behind the store. who worked cup juvenile p.m., home, at a had awakened at about 5 had a of coffee at his home to let wife, the store with and returned dogs man out for a run. Mrs. Turman showed the
their pur- store. He stated that he was interested around the chasing unit, of furniture for a rental about worth and $600 He left to see different items. the store asked several briefly, stating wife be back to look at some of that his would items. the just asking
The returned a minutes later to same man few price. inquiring and about the Mrs. stoves, see some When adding grabbed the he her machine, Turman turned toward saying say you pressed gun “Do back, to her as and and get He hurt.” took her to the rear of the store and won’t register. money, open her took told to the cash He the then part springs to ordered her the the store where some box against that time and mattresses were stacked the wall. At appeared Turman at the back Mrs. Turman Mr. door. right while the man reached across her shoulder screamed eyes. between the Mr. Turman fell and shot Mr. Turman partially building. Ordering one foot the backwards, with pull man to move, Mrs. Turman not to tried Mr. Turman building door, into and close the but could not do so be- caught one of Mr. Turman’s feet was in the cause door. faceup in rain, man left Mr. Turman and told Mrs. get approximately down the floor five feet from Turman to lay dying. begged go to While she to her where her husband unzipped he told her remove her false teeth. He husband, pants, his demanded that Mrs. belt, unbuckled cry perform began oral sex on him. “Lord, Turman She up mercy.” get go He her to have told towards front store. neighbor family, Meanwhile, Arnolds, became aware something happened to Mr. Turman. The mother 16-year-old Phillip, part-time employee her sent son Phillip help. When reached the store, furniture back door lying partially building. in the he saw Mr. Turman When body Phillip opened the Turman’s inside, door take Mrs. *5 “Phillip, go Phillip no, back.” not know Turman shouted did help get Turman in- what she meant and asked the man to buddy, you.” Phillip replied, help I will As “Sure, side. He pulled up, pointing gun the man in face. He looked was his pulled trigger again trigger gun and the he misfired; Phillip Phillip away, in and shot the mouth. started to run running, and was shot the neck. While he was still he was Despite Phillip wounds, a third time side. these shot managed neighbor, to stumble to the home of a Mrs. Edith Hill. her an tried She had husband call ambulance while she Phillip’sbleeding. helping Phillip, stop to While she was she green saw a late model Chevrolet leave the store and head Tampa Highway Phillip towards on State survived the regained Turman, consciousness, Mr. who never incident; night. later that died petitioner driving towards
Minutes after murder was away Tampa Highway just miles the furni- on a few from furlough prison, He out from a Florida ture store. was driving girl Tampa. a car borrowed from his friend and was driving He fast on a wet road. Petitioner testified that was up lane, he came on a line of cars his he was unable to as attempted pass, down. He but was forced off slow oncoming an car. Peti- road to avoid a head-on collisionwith telephone pole. The driver of the on- tioner crashed into a stopped peti- coming Stone, his car and went to car, John help. if to see he could Stone testified that as he tioner petitioner zipping up pants approached car, pe- buckling Police at the crash site later identified his belt. golden Impala greenish titioner’s car as a 1969 Chevrolet bystander give paid him a ride color. Petitioner brown only Tampa. returned wrecker, Petitioner later away by police. that the car had been towed find By police at the scene of the accident, the time the arrived petitioner that the car the de- had left. The fact matched leaving scription murder, the car the scene of the and that within three and one-half miles of the accident had occurred po- murder, store and within minutes of the led the furniture *6 by suspect the murderer. car was driven that the lice to pistol They re- An found a officer the area. searched —a arrangement site. The 40 feet from the crash volver—about pattern exactly the matched the chambers of shells within weapon: shot, one in the murder have been found that should a live shell remain- shots, three with misfire, followed one specialist ing A for the Fed- to be fired. in the next chamber pistol Investigation the and testified examined eral Bureau of special It had revolver. a & Wesson .38 that it was Smith it later was sent .38; as a standard been manufactured type gun making England it a much rarer rebored, to be An examination of the bullet .38. than the standard a .38 & that it came from Smith killed Mr. Turman revealed special. Wesson day following petitioner was arrested at the the murder
On days Tampa. girl in A few later Mrs. friend’s house his hearing preliminary him as her hus- identified at a Turman petitioner’s pic- Phillip selected murderer. Arnold band’s photographs spread of six as the man who had ture out of a ap- By him.1 a Defender had been time, Public shot represent petitioner. pointed to eyewitness in discrepancies minor identification.
1There are some immediately first described her assailant after the murder Mrs. Turman emergency room. being her husband was taken to the She told the while heavy-set attacker man. Tr. 237. investigating officer that appearance, clean-looking, in if he was “neat clean- When asked remember, yes, shaven,” responded far as can sir.” Ibid. She “[a]s she thought that the attacker was about her stated to the officer that she also tall, wearing pullover stripe shirt height, 5' 6" and that he was petitioner 227. The first time she saw after the neck. around preliminary hearing. him at the She had attack was when she identified crime, any newspaper any pic nor had she seen read accounts petitioner if petitioner. When she was asked was the man who had ture of crimes, repeatedly yes. said She also identified him she committed trial. petitioner photo lineup in a
Phillip Arnold first identified while time, speak response hospital. He could not to the written mustache, Phillip petitioner had a wrote back “I don’t question whether petitioner’s arguments As all relate to incidents up, together course of his trial, will be taken with the chronological facts, relevant order.
(h-H—I Petitioner contends that one member of the venire, Mr. *7 Murphy, improperly was excluded under the test enunciated (1985). Wainwright Witt, 412 U. S. That case mod- opinion Witherspoon ified this Court’s v. Illinois, 391 (1968). Witherspoon potential jurors U. S. had held that may opposition be excused for cause when their to the death penalty they automatically against is such that would vote a impaired sentence of death or would be in the task of deter- mining guilt. proper defendant’s Witt held that the test is “ juror’s capital punishment ‘pre- whether the views on would substantially impair performance vent or of his as duties juror in a accordance with his instructions and his oath.’” quoting S., at 424, Texas, Adams v. 448 U. S. judge’s Witt also made clear that the trial deter- potential juror impermissibly mination that a is biased is a finding presumption factual a entitled to of correctness under §2254. 28 U. C.S, argument solely
Petitioner’s on this issue relies on the wording question Murphy of a the trial court asked before ex- cluding you him. The court asked: “Do have moral or religious, religious principles oppo- conscientious moral or Id., Phillip think so.” also 476. testified at trial that the attacker was heavy-set dull, wearing light a man a color knit ring shirt with a around the Id., neck. at 443. He testified that the man height, was almost his about 2"6' tall. stopped
A motorist who at the scene of the peti- accident testified that wearing off-grey tioner was a white or button-down shirt and that he had Id., slight fact, mustache. 318-320. the witness that he stated raindrops [the “didn’t know it was mustache] or on him not. I or really it, thin, tell that much to couldn’t it was real that’s all.” tall, is about 5' 10" 318-319. Petitioner and at the time of trial testified pounds. weighed that he about strong penalty you to the death so would unable
sition your violating principles to recommend without own vote to regardless penalty App. facts?” Petitioner death question correctly argues does not state the rele- legal however, makes our clear, vant standard. As Witt single inquiry not end does with a mechanical recitation of a question S., and answer. 469 at 424-426. U. We therefore surrounding Murphy’s exclusion examine context Murphy’s determine whether the trial court’s decision that “substantially impair performance beliefs would juror” fairly supported by duties as the record. During prior questioning voir dire, but to individual on this point, spoke including the trial court to the venire, entire saying: Murphy, going individually you I
“Now am to ask each of question carefully, same so to me listen want to know if *8 you any strong religious, have such moral or conscien- principles opposition penalty tious to the death that you unwilling advisory would be to vote to return an sen- recommending though tence the death sentence even presented you facts to should be such as under the law require you would that recommendation? Do under- my question?” stand proceeded question then
The court to the members of the individually, but did so while venire the entire venire was present throughout Thus, in the courtroom. the individual questioning, questions all the veniremen could hear the prosecution frequently incorporated fact, answers. prior by questioning of other veniremen reference, each time being questioned the assurance from the individual that previous questions. he heard or she had and understood the 112, 141-142; see also 89-90, See Tr. id., 160. repeatedly the correct standard when
The court stated Murphy questioning of the venire.2 individual members proper Witherspoon present court ask the and heard the again.3 many question After instances of such over and over any objected questioning to Prior to voir dire defense counsel juror’s feelings penalty. regarding potential about death prosecution motion, stating: judge denied the prospective juror on his voir dire examination my ruling if a states “It is moral, principles he religious conscientious and belief that because of his or penalty, though even the facts unwilling to recommend a death would be law, then he in effect has said requirements meet the and circumstances App. unwilling the law . . . .” to follow he would dismissal,, he judge correctly general standard for Although the stated objection make- an counsel that were free to assured defense objectionable that Witherspoon question that was otherwise or particular Id., “gone too far.” at 7. you Macy: hold such con example, “[D]o the court asked Mrs. For opposition penalty the death religious principles moral or scientious unwilling any circumstances to recommend you would be under affirmatively Varney, responded Mr. who sentence?” Tr. 44. To death the event that the evi question, “[I]n the court asked further: to the above legal recom the law that should be the should be such under dence unwilling return such a recommendation be you would be mendation three new veniremen your beliefs?” Ibid. When conscientious cause excused, “Do either of the the court asked: replaced others who had been principles religious, moral or conscientious you strong hold such three of you unwill penalty that would be imposition of the death opposition to the of what the evi penalty regardless recommend the death ing to vote to on, explained the court point Ata later similar dence was?” “I the others and will ask venire that have asked replacements from the strong religious, you have such conscien you whether of the four of each imposition penalty of the death against the principles tious or moral *9 of the return a recommended sentence unwilling to vote to you would might be?” the evidence or the facts regardless of what penalty death again reservations, once the court expressed four 109. one of the When of assur demonstrating practice its up questioning, further followed with position. juror’s true itself, any doubt, potential if ing there was prior Murphy, to id., dire examination During at 107. the voir also See grounds. Witherspoon jurors potential were excused four jury questioning, Murphy The was seated the box. court Murphy occupation, and learned he was first asked spent eight years retired, had the before retirement but Seminary. working of Pios in the administration office St. you any previously then noted, the court asked: “Do have As religious, religious principles moral or conscientious moral or penalty strong you opposition so would be the death violating your principles own rec- unable to vote to without regardless penalty of the facts?” After ommend a death Murphy responded “Yes, have” he was excused. wording question Murphy, precise of asked of the gave, by compel he do the
the answer not themselves conclu- he recommend sion that could under circumstance penalty. recognized But the death that “determina- Witt question-and-answer juror cannot tions bias be reduced in the sessions which obtain results manner of a catechism.” undoubtedly court, The trial “aided as it S., by potential juror’s] [the was its demeanor,” assessment obligation was under the id., determine whether “ ‘prevent Murphy’s substantially impair or views would the ” performance juror,’ making id., of his duties as a at 424. the court determination, this trial could take account of the Murphy present throughout fact that was an entire series questions purpose meaning the in- made of Witt absolutely quiry specific objection clear. No was made Murphy excusal defense counsel. Nor did the court perceive, previously, any question as it need to further. Viewing entirety, agree of voir dire in record its we reasoning Appeals of the Court of that the trial court’s juror proper. decision to 2d, exclude 767F.
HH < prosecution’s closing Petitioner next contends that ar- gument guilt-innocence stage at the trial rendered his fundamentally deprived sentencing conviction unfair and *10 reliability Eighth determination of the that the Amendment requires. helpful place
It is as an initial matter to these remarks Closing argument days context. came at the end of several procedural petitioner’s of of trial. Because a state rule4 present opportunity counsel the the initial summation prosecutors’ closing arguments. as a as well rebuttal to the prosecutors’ light The must be of comments evaluated the argument preceded it, defense blamed the Polk which County evidence,5 Sheriff’s Officefor a lack alluded the penalty,6 perpetrator death the of the characterized crimes personal opinion “animal,”7 as an and contained counsel’s strength of the State’s evidence.8 closing argument. prosecutors then their made That argument deserves condemnation it has from received although every it, court to review no court has held argument rendered trial unfair. Several comments attempted place some of the blame for the crime on the (1973)provided Florida Criminal
4Rule 3.250 Rules of Procedure offering testimony behalf, own, except that “a defendant no his own concluding argument jury.” shall to the before the be entitled you Judge going to tell lack 5“The is to consider the evidence or the evidence, criminally negligent evidence. We have a lack almost on the go part County Polk Sheriff’s Office You on case. could it.” Tr. 728. about capital that into a “They magnified took a coincidence and case. And Id., they asking you coincidence.” are to kill man on 730. Turman, you pathetic first was Mrs. who “The witness saw figure; struggled had, of her life who worked and all to build what little she store; robbed, sexually assaulted, furniture and a who was little woman eyes, her slaughtered and then had husband before her what would Id., a vicious animal.” ran have to be “And this murderer after him, again, poor away. and this half blown . . . aimed kid with his brains animal, Id., of an it.” doubt about at 731-732. It’s the work there’s no up they County kill people come on here Citrus “So and ask question . will instructed on lesser included offenses. . . The man. You is, enough man, enough kill that And they do have evidence to evidence? do not think do.” honestly 736-737. *11 Corrections, Darden was on weekend Division of because furlough prison crime sentence when the occurred.9 from a penalty implied the the death would be comments Some against only guarantee incor- a future similar act.10 Others porated use of the word “animal.”11 Prosecu- the defense’s reflecting comments an made several offensive tor McDaniel These comments undoubt- reaction to the case.12 emotional edly improper. the as both the Court and were But District 9 concerned, “As I am be Defendant in this far as there should another corrections, courtroom, more, prisons. the one and that is division the stay prison they go we expect . . Can we him to in a when there? Can’t . up expect stay go them to locked once there? Do we know that they’re public guns, drinking?” App. on 15-16. going to out the with “Yes, Defendant, regret charges I to there another but I that know of no is him, them, place upon except public condemn them.” the condemnation Id,., at 16. only you give “I the to him death. That’s will ask to advise the way going get public. only I he on that know that is not out the It’s the way way only only way I know. It’s I can be sure of it. It’s the the now, anybody people can of it because the that turned him be sure loose —.” Id., at 17-18. concerned, Maloney I am and Mr. as he identified “As far as as said animal, public man, person as animal on for one this this an this the Id., reason.” at 15. cell he a leash on him a “He shouldn’t be out of his unless has and Id., guard at 16. “I prison [Mr. at the other end of that leash.” wish shotgun had had he his hand when walked the back door Turman] I him sitting [Darden’s] blown his face off. wish that could see here Id., face, away by “I shotgun.” had with no blown 20. wish someone point.” “He back door and blown his head off at that Ibid. walked the back, five, boy’s saving get fired in the number one. Didn’t a chance ” Id., on it. I wish he used it himself. “I he had been use 28. wish accident, Again, unlucky killed in but he wasn’t. we that time.” are Id., witnesses, forget according those what he has done “[D]on’t 8th, appearance September every attempt change to make from hair, weight. The goatee, 1973. The even the and the moustache only thing throat.” he hasn’t done that I know of cut his is this, comments, objected the last in a counsel After series such defense for the first time. (whose Appeals opinion panel
original
the Court
stands)
pros-
enough
recognized,
it “is not
still
issue
universally
or
con-
remarks
undesirable
even
ecutors’
were
Wainwright,
at 1036. The
2d,
Darden
699 F.
demned.”
prosecutors’
question
comments “so
relevant
is whether
resulting
trial
unfairness as to make
infected the
process.” Donnelly
denial
v. DeChristo-
of due
conviction
appropriate
stand-
Moreover,
416U. S.
foro,
corpus
a claim on writ of habeas
is
of review
such
ard
process,
one of
the broad exercise of
narrow
due
“the
*12
power.”
supervisory
at 642.
Id.,
agree
the
review,
of
we
with
reason-
standard
Under
every
ing
that
court
these comments
did
of
to consider
petitioner
prosecutors’ argu-
deprive
trial.13
of a fair
The
not
13
opinion
of
dissenting
argues
pros-
that because
Blackmun’s
Justice
petitioner
The
did not receive a fair trial.
dissent
misconduct
ecutorial
only imperfection
not
but a level
“willing
the Court is
to tolerate
states that
prosecutors
reliability
it should
so low
make conscientious
of fairness
was,
Post,
agree
argument
at 189.
that the
deserved to
cringe.”
We
prosecutors
recog
will
be,
Swpra, at 179. Conscientious
condemned.
however,
argument went
nize,
every
court that criticized the
on to
by
prosecu
trial was
the
petitioner’s
not affected
hold that the
of
fairness
argument.
tors’
Supreme
1976,
so held after a care-
appeal
the Florida
Court
On direct
State,
329
“totality
record.” Darden v.
So. 2d
review of the
of the
ful
petition,
the first
habeas
the District Court consid-
290-291. On
federal
petition.
the
closing argument
length
and denied
prosecution’s
ered
of the
that it was “convinced
“thorough
after
review
record”
It concluded
Supp. 947,
F.
Wainwright,
Darden v.
513
no relief is warranted.”
1981).
(MD
perfect
was
are —but nei-
Fla.
“Darden’s trial
not
—few
original panel
Ibid.
fundamentally
it
unfair.”
ther was
respect
holding
pros-
to the
Appeals affirmed
District Court’s
prosecutors’
re-
argument.
that it
“considered
ecutors’
It stated
trial,”
and that it
light
Darden’s entire
marks and evaluated them
prosecutors’
conclusion
com-
court’s
“agree[d] with
district
fundamentally
F. 2d
deny
trial.”
not
fair
ments did
Darden
Appeals
the case en
reheard
banc
When the Court
1036-1037
manipulate
or misstate the
it
evidence,
ment did
nor did
implicate
specificrights
right
other
of the accused such as the
counsel,
right
or the
to remain silent. See Darden v.
Wainwright,
Supp.,
objection-
513 F.
Much of the
responsive
opening
or was
able content was invited
to the
explained in
of the defense. As we
summation
United States
(1985),
Young,
response”
470 U. S.
the idea of “invited
is
improper
used not to excuse
comments, but to determine
their effect on the trial as a
whole.
at 13. The trial
jurors
court instructed the
several times that their decision
was to be made on the basis of the evidence alone, and that
arguments
weight
of counsel were not evidence. The
against petitioner
heavy;
the evidence
the “overwhelm-
ing eyewitness
support
and circumstantial evidence to
a find-
ing
guilt
charges,”
on all
2d,
So.
reduced the
jury’s
by argu-
likelihood that the
decision was influenced
Finally,
ment.
defense counsel made the tactical decision
present
petitioner.
not to
witness other than
This deci-
only permitted
give
prior
sion not
them to
their summation
closing argument,
prosecution’s
gave
but also
them the
opportunity
argument.
to make a final rebuttal
Defense
*13
opportunity
very
counsel were able to use the
for rebuttal
ef-
fectively, turning
prosecutors’ closing argument
much of the
against
by placing many
prosecutors’
them
of the
comments
light
likely
engender strong
in
and actions
that was more
disapproval
passions against peti-
in
than result
inflamed
expressly agreed
panel
for the second time it
with
pros-
decision on the
(1984).
ecutorial misconduct issue.
725 F. 2d
Appeals, however,
The Court
reversed the District Court on the
Witherspoon
issue.
granted
petition
This Court
the State’s
for certiorari
issue,
only on that
and vacated and remanded the ease for reconsideration
Wainwright Witt,
(1985).
light
in
v.
Appeals
tioner.14 perfect are— trial was not that “Darden’s Court below —few Supp., fundamentally 513 F. unfair.” was it but neither 958.15 many times did he impassioned plea . . . how made an “Mr. McDaniel shot, they had blown his face you been I wish
repeat I wish [it]? man that God, impression like to be the My get he would away. id., 791; also on him.” Tr. see pulls the switch stands there hearing he corpus testified at the habeas of Darden’s counsel One improper comments. Based object to the tactical decision not to made the McDaniel, he knew McDaniel would experience prosecutor long on his By you go him to on.” in remarks if allowed more vehement “get much com- encourage prosecution immediately objecting, hoped he not Supp. App. 46-47. error. mit reversible mistakenly argues that the dissenting opinion Blackmun’s 15Justice harmless, then criti finds, essence, today in error Post, at applying the harmless-error standard. the Court for not cizes on the prosecutorial misconduct do not decide the claim of 196-197. We case, is of the that issue harmless error. our view ground that it was Rather, every that has agree holding we with the court presented. not issue, prosecutorial argument, in the context that the addressed the case, petitioner’s trial un did not render circumstances of facts and e., error. fair—i. that it was not constitutional requirement the comments violated also maintains that Petitioner Mississippi, reliability sentencing process in the articulated Caldwell applicable to this principles of Caldwell are not S. 320 sentencing by prosecutor during the involved comments Caldwell case. jury’s as to life or death was to the effect decision phase of trial Court, automatically Supreme be reviewed the State final, that it would made to that the entire burden of the not be feel jury and that the should held that such comments them. This Court life was on defendant’s jury mini- danger that the will fact choose to an “presen[t] intolerable fundamentally role,” that would be incom- importance a view mize the of its jury an Eighth requirement that the make Amendment patible with spe- appropriate punishment decision that death is the individualized cific case. distinguishing from the factual reasons for Caldwell are several There sentencing made at the The comments Caldwell were
present case.
*14
case,
approved by
judge.
In this
the com-
the trial
phase
and were
of trial
trial,
reducing the
guilt-innocence stage
greatly
at the
of
were made
ments
judge did
sentencing.
effect
The trial
at all on
that
chance
V
that he was denied effective assistance
Petitioner contends
sentencing phase
of trial. That claim must
of counsel
the
two-part
against
test
be
the
announced Strick-
evaluated
Washington,
petitioner
First,
land
than on . case have been involved probably any than more time case I’ve ever been involved Supp. App. investigating peti- in.” That 30. included time driving petitioner alibi, tioner’s around the scene of point story. events to establish each of his Counsel obtained psychiatric report petitioner, eye using a with an toward it mitigation during sentencing. in Counsel also learned pretrial preparation opposed that Mrs. Turman was to the penalty, possibility putting death and considered the of her sentencing phase. clearly on the stand at the The record great indicates that a deal of time and effort went into the significant portion case; defense of this of that time was preparation sentencing. devoted interpreted Petitioner also claims that his trial counsel Fla. 921.141(6) § (1985), statutory mitigating factors, Stat. list of as an exclusive list. He contends that their failure to intro- any mitigation duce evidence was the result of this inter- pretation thereby deprived statute, and that he was of express effective assistance counsel. We no view about interpretation law, the reasonableness of that of Florida be- specifically peti- cause this case the trial court informed just prior sentencing phase tioner and his counsel to the they “go might could into other factors that trial that really your pertinent to full consideration of case and the be analysis any- you your family your causes, or situation, thing appropriate might pertinent what is the else that previ- point, if Tr. 887. At that even counsel sentence.” they ously exclusive, believed the list to be knew were nonstatutory mitigating evidence, and chose not free to offer to do so. recognized scrutiny coun-
As we Strickland: “Judicial performance highly A fair sel’s must be deferential. ... every attorney performance requires ef- assessment of hindsight, distorting be made to fort eliminate the effects challenged con- to reconstruct circumstances of counsel’s perspective to evaluate the duct, and conduct from counsel’s particular, “a S., time.” court at the indulge strong presumption must counsel’s conduct professional range of falls within the reasonable assist- wide presumption is, overcome the ance; the defendant must challenged ‘might circumstances, under the action that, *16 strategy.’” quoting Ibid., considered sound trial Michel (1955). In Louisiana, case, v. 350 U. S. there why reasonably cho- are several reasons counsel could have rely plea mercy petitioner simple on a for from sen to himself. Any attempt portray petitioner as a nonviolent man would opened for the to rebut with of have the door State evidence prior petitioner’s previ- convictions. This evidence had not ously reasonably in evidence, been admitted and trial counsel particularly damaging. have could viewed it as The head of corpus the Public at the Defenders Office testified habeas hearing petitioner jails that “had in and out been of prisons for most of his adult life . . . .” Tr. of Habeas Corpus Proceedings example, pre- had, for Petitioner viously been convicted of assault with intent commit (Fla. 1969). rape. App. Darden State, So. 2d 485 attempted testimony if counsel had addition, defense to offer incapable petitioner committing that was of the crimes at responded psychiatric could have here, issue report State with a petitioner “very that that well indicated could have psy- [the he crime; was, committed as recall chiatrist’s] sociopathic type personality; term, that he would entirely impulse premeditation act with no from the planning. standpoint of But arose, that when a situation simultaneously the decision would be made to commit the Goodwill). Supp. App. (testimony act.” of Mr. For that petitioner, reason, after consultation defense counsel testimony. rejected psychiatric use of the Tr. 886. Simi- larly, attempted put if defense counsel on evidence family petitioner man, would was have been faced although that, still with his admission at trial he was married, furlough girlfriend. spending the with a In sum, weekend presumption petitioner has “overcome the that, not under challenged ‘might action circumstances, the be considered strategy.’” quoting sound trial S., U. Michel v. supra, satisfy Louisiana, at 101. Petitioner has failed to part the first of test, the Strickland that his trial counsels’ performance objective fell below an standard reasonable- agree ness. We with both the District Court the Court Appeals petitioner deprived the effective 2d, assistance counsel. 699 F.
VI judgment Appeals is affirmed, and the proceedings case is remanded consistent with this opinion.
It is so ordered. Burger, Chief Justice concurring. fully opinion
I
in
concur
for the Court and write
separately only
suggestion
to address the
in Justice
rejects
dissent that the Court
Wither-
Darden’s
Blackmun’s
spoon
“impatience
progress
claim because of its
with the
challenges
Darden’s
Post,
constitutional
to his conviction.”
support
contention,
this
reference is made to
my
grant
dissent from the
in
of certiorari
this case. The
deny
petition
I
dissent states that
voted
because
by
judges
Darden’s claims have been
95
in the 12
reviewed
years
simply
since
conviction. This is
incorrect. To set
quote my
straight, I
in
the record
dissent
full:
years
petitioner
“In
12
since
was convicted mur-
death,
der and sentenced
the issues now raised
petition
by
for certiorari
been
have
considered
this Court
(1977)
times,
four
Darden
430
Florida,
see
v.
U. S. 704
(dismissing
improvidently granted);
certiorari as
Darden
(1984)
Wainwright,
(denying
v.
U. S.
certio-
(1985)(va-
rari); Wainwright Darden,
v.
S. 1202
U.
(CA11
cating
remanding
1984));
and
impatience refuted with Darden’s constitutional claims is years proceedings judicial in this case record; the 13 patience. rejection of care and Our manifest substantial sought he has review claims in this the fourth time Darden’s again thoughtful application once based on a this Court is point At there of the case. some must to the facts the law finality. Brennan, dissenting. Justice join my adher- Moreover, Blackmun’s dissent. Brother penalty
ing my in all that the death is circumstances view prohibited by Eighth punishment cruel and unusual Gregg Georgia, Amendments, S. Fourteenth (1976) dissenting), I J., would vacate the (Brennan, imposed death sentence this case. *18 Brennan, with whom Justice Jus- Blackmun,
Justice dissenting. Stevens Marshall, join, tice and Justice Although guarantees a defendant the Constitution criminal only perfect [and] v. Lutwak United one,” “a fair trial not a (1953); Bruton v. United 604, States, 619 States, 344 U. S. (1968), repeatedly stressed 391 U. 135 this Court has 123, S. (1976), Georgia, Gregg S. 153 the decade since v. Eighth requires heightened degree a of Amendment that any reliability in seeks to case where a State take defend-
189 Today’s opinion, a will- however, reveals Court ant’s life.1 imperfection only ing but a level of fairness tolerate prosecu- reliability it should make conscientious so low cringe. tors
A prosecutorial The of Darden’s claim Court’s discussion Despite noteworthy the fact for its omissions. misconduct is heavily on relied standards that earlier this Term responsibility governing professional counsel of defense attorney’s deprive ruling client an actions did not that right, Whiteside, Nix 475 S. see v. U. constitutional entirely gov- (1986),today ignores it standards 157, 166-171 responsibility erning professional prosecutors in reach- prosecu- ing Darden’s the conclusion that the summations of deprive ante, him of a trial. at 178-183. tors did not fair See prosecutors’ case as to The remarks in this reflect behavior “virtually speak Nix voice,” one v. all the sources which strong supra, condemna- Whiteside, 166, is, voice of following comparison established stand- brief tion.2 (1985); 1See, 320, Cali Mississippi, 472 U. S. 328-329 g., e. Caldwell v. 992, Alabama, 447 Ramos, (1983); Beck v. v. 463 998-999 U. S. fornia (1978) 586, Ohio, (plu 625, (1980); 438 604 637-638 Lockett v. U. S. U. S. (1977) Florida, 349, (plurality rality opinion); S. 358-359 Gardner v. U. (1976) 280, (plurality Carolina, opinion); v. North 428 U. S. Woodson opinion). prosecutors’ con Every judge behavior has who has addressed (Fla. 1976) (“[T]he State, 2d demned it. See Darden v. 329 So. ordinary circumstances would constitute prosecutor’s remarks under Responsibility”); id., 291-295 violation of the Code of Professional (MD Wainwright, Supp. (dissenting opinion); Darden v. 513 F. 1981) (“Anyone attempting a illustration of violation Fla. text-book upon possibly improve Responsibility . . . could not Code Professional Wainwright, statement]”); Darden 699 F. 2d [prosecutor White’s final id., opinion). 1031,1035-1036 (CA111983); (dissenting Even at 1040-1043 Attorney summation prosecutor McDaniel’s State’s concedes even “unnecessary tirade,” Supp. App. one has ever “[n]o an anything but weakly closing remarks were suggested that McDaniel’s *19 prosecutors’ prosecutorial ards of conduct with the behavior merely hardly scope in this case illustrates, exhausts, but of the misconduct involved:
improper,” Supplemental Wainwright, in Darden Answer Case No. (MD Fla.) (June 1, 1979), p. 79-566-Civ. T. H. and that much of the “inflammatory irrelevancies,” summation consisted of Answer to Pet. for Corpus Wainwright, in Darden v. Habeas Case No. 79-566-Civ. T. H. (MD Fla.) 22, 1979), (May p. 11. Supreme Court, Court, It is true that the Florida the Federal District Appeals ultimately and the Court of each concluded that Darden had not deprived grounds of a fair trial. But the been on which each rested its troubling Supreme conclusion are indeed. The Florida Court’s “careful re- ‘totality record,”’ it, view of the of the as this Court now would describe ante, paragraphs. n. consists of three The first of these dis- petitioner criminal,” stayed cusses evidence that “was a career who with a than furlough, woman other his wife while on and used her ear to visit vari- pool contrary ous bars and a hall to the furlough. conditions of his The notes, paragraph among things, petitioner second other “admitted speeding creating great danger in a rainstorm and to other motorists” on night of the murder. And the last describes the heinousness of the store, says absolutely nothing events occurred the Turmans’ but tying petitioner 2d, about the evidence to those events. 329 So. at 290. (The Phillip court earlier had noted that Mrs. Turman and had iden- Arnold 288.) petitioner perpetrator. Id., tified as the Supreme analysis, however, The crux of the Florida Court’s is that it “possible language to use which is fair these was not comment about crimes shocking feelings any person[.] language without normal used by prosecutor possibly would have been reversible error if it had been regarding permits used a less heinous set of crimes. The law fair com- Id., prosecutors ment. This comment was fair.” at 290. Since the “reasonably happened what and what should deserib[ed] be done to the guilty party,” their comments were not erroneous. apparently applied by wholly Florida is A unacceptable.
The standard depend right to a fair trial cannot on the nature of the crime of defendant’s guilty party” which And “what should be done to the can- he is accused. guilt. not be relevant to the determination of The District Court’s conclusion suffers from a similar error. addition today advancing many arguments adopted the Court —none persuasive, infra, is see District Court found which at 194-200—the no “keyed to prejudice prej- because the offensive statements were not arouse against the accused on basis other than the horror of the udice crimes *20 “A not . . . state a as lawyer personal opinion shall of a ... or the or innocence credibility guilt . . . the witness Rule Conduct, Model Rules of Professional of an accused.” 3.4(e) see of Professional (1984); Responsibility, also Code 7-106(0(4) DR ABA for Criminal Justice (1980); Standards 3-5.8(b)(2d 1980). White, ed. Yet one stated: prosecutor, I I know am before convinced, standing “I am as convinced as murderer, is a that he that Willie Darden you today, Jasper Mrs. Turman and that Turman, murdered Mr. that he robbed kill I convinced of that the he shot to Arnold. will be Phillip life.” 15. And the other prosecutor, rest of my App. ‘Well, to Darden’s McDaniel, stated, testimony: with respect If I am ever over that chair over you let me tell something: life life or I there, death, death, guar- or facing imprisonment Id., lie until out.” at 18. antee will teeth fall you my refrain from which argument 2. “The should prosecutor would divert the from its to decide the case on the jury duty phase Supp., guilt themselves.” 513 F. n. 12. But at the of this trial, horror issue bifurcated about the crimes was irrelevant. sole merely Appeals whether Darden them. The was committed 2d, approved analysis F. quoted and of the District Court. See 699 1036-1037. judges petitioner’s catalog
In its of the number of who have found trial to fair, Magistrate peti- to include the before whom have been the Court fails actually conducted, proceedings tioner’s federal habeas were and who rec- grant petitioner ommended that habeas on the the District Court relief Game, Jr., prosecutorial Magistrate his claim basis of misconduct. Paul correctly recognized essentially that this ease turned on the relative credi- witnesses, Arnold, Darden, Turman, Phillip bility of three Mrs. and Willie prosecutors’ humanity that the concerted attack on Darden’s could well jury’s credibility. App. affected the assessment of his See 214. He have recognized “[i]n that the remarks occurred the context of the emotion- also Darden, man, robbery, a black ally charged trial of accused of the brutal man, repeated shooting murder of a white of a defenseless white teen- Notably, ager and vile sexual advances on white woman.” place, including today ignores the context which the trial took the Court petitioner’s change granted, motion for a of venue the fact that why hypothesizing prosecutors’ itself instead with reasons contents deprive hanging them shameful conduct should not of a verdict. guilt injecting or evidence, issues broader than inno- controlling by making or law, cence of the accused under the predictions consequences jury’s ABA of the verdict.” (2d 3-5.8(d) 1980); Standards Criminal Justice ed. cf. 3.4(e); Conduct, Model Rules of Professional Rule Code of 7-106(C)(7); Responsibility, DR ABA Professional Standards 3-6.1(c) (2d 1980). for Criminal ed. Yet McDaniel’s Justice argument was filled with references Darden’s status as a furlough prisoner on cell who “shouldn’t out unless *21 g., App. he has leash on him.” e. at 16; also, id., 17,18, a see Again sought again, put 24, and he an 23, 26. to trial ab- Department sent the State of Corrections that “defendant,” furloughed g., See, id., 15, 17, 23, Darden. e. at 32. implied improper He also defense counsel would use jury id., 15, tricks to deflect the from the real issue. See furloughed prisoner, 26. Darden’s a the status as release Department policies the Corrections, his counsel’s anticipated obviously legal tactics had no relevance the question jury being he the was asked decide: whether had' robbery committed the and murder at the Turmans’ furniture argued Indeed, store. the State before this Court that precisely McDaniel’s were harmless because he remarks weight the the issues, evidence, “failed to discuss or credibility Respondent Brief of the witnesses.” for 26. arguments prosecutor 3. “The should use calculated to ” passions jury. prejudices inflame the or ABA Stand- 3-5.8(c) (2d 1980); Berger ed. ards for Criminal Justice see v. States, 295 U. Yet McDaniel re- United S. [Darden] expressed sitting peatedly “that I could wish see away by shotgun,” App. face, 20; here with no blown see g., 28, 29, Indeed, do not think also, id., e. accurately summation, taken as a can whole, McDaniel’s anything single-minded a relentless but described as at- jury. tempt to inflame
B Court, see relies on standard estab- ante, Donnelly 416 U. S. DeChristoforo, lished (1974), deciding prosecutor’s for when a comments at a state fundamentally omits, that trial unfair. It how- trial render facts, discussion of the so different from those ever, that led the conclude case, Court to DeChristoforo deprived that defendant had not of a fair trial. been pros- concerned “two remarks made DeChristoforo during lengthy closing argu- the course of his rather ecutor jury.” at 640. One remark was “but one Id., ment to the extended trial.” at 645. And even the moment of an “ambiguous,” objectionable ibid., remark so more inferring prosecutor provided either that the it no basis damaging meaning “intend[ed] [it] its most or that have [would] jury, sitting through lengthy exhortation, draw that damaging interpretations,” meaning plethora of less from Finally, judge in trial ex- id., at 647. DeChristoforo improper pressly jury disregard the state- instructed the *22 holding its thus rested on ments. at 645. This Court’s prosecutor’s comments were neither so that the conclusion improper as to violate the Constitution. extensive nor so “might involving “ambiguous” or that Far statements from jury, might at issue id., 647, the remarks not” affect strong.” unambiguous, Caldwell v. “focused, here were (1985). impossible Mississippi, It is 320, 472 U. S. 340 seeing transcript summation without of McDaniel’s read the jury. attempt to inflame the and sustained it a calculated as every page im- at least one offensive or contains Almost proper pages The mis- contain little else. some statement; single “slight instance, confined to a conduct here was not or probable pronounced persistent, cu- . was . but. disregarded upon jury as cannot be effect which mulative Berger inconsequential.” States, S., at 89. v. United
C entirely unpersua- presents is, me, what for an The Court ignoring laundry one-page for list of reasons blatant sive says that the summations “did First, the Court misconduct. implicate [or] manipulate or misstate the evidence . . . right specificrights coun- of the accused such as the other right all Ante, to remain silent.” at 182. With sel or the quite point. respect, The is beside the “sol- observation endeavoring purpose to ascertain the truth ... is the emn qua trial,” Texas, non a fair Estes v. 881 U. S. sine (1965), very of the and the summations cut to the heart by diverting jury’s attention “from Due Process Clause question guilt ultimate or innocence should be proceeding.” Powell, in a criminal Stone v. central concern (1976). U. S. says objectionable “[m]uch the Court Second, responsive opening invited or was to the sum- content was citing Ante, United States v. mation of the defense.” por- Young, The identifies 470 U. S. Court four “in- defense summation that it thinks somehow tions of the barrage. State, however, The vited” McDaniel’ssustained my object statements, and, mind, of these did not justified objectionable it of them is so that would have none interrupt per- summation and decision to the defense tactical jury. haps id., irritate the Cf. at 13-14. by stating begins that defense counsel “blamed”
The Court Ante, for a lack of evidence. the Sheriff’s Office identify any, if of McDaniel’sre- which, does not response represented to this statement. cannot marks suggesting, example, that de- that the Court is believe negli- crimina[l] of the “almost counsel’s one mention fense *23 County gence] part Office,” on the of the Polk Sheriff’s Tr. express repeated justified that McDaniel’s wish he 728, try Department of for murder. See, the Corrections could App. g., 23, 32. 15, 17, e.
Next, the Court notes that defense counsel to the “alluded” penalty. might death Ante, at 179. While this allusion have justified “you merely statement that McDaniel’s are to deter- guilt, nothing App. his else,” mine innocence or it 17, could hardly justify, example, expressions for of McDaniel’s his personal away by shotgun,” wish that Darden be “blown id., 20; id., at see at 28, 29, also 31. says,
Moreover, the defense counsel twice referred perpetrator an at Tr. Ante, 179; the as “animal.” see entirely why It is me 732. unclear to this characterization prosecutor response for at all. Taken in called from the nothing context, defense counsel’s statements did more than jury although everyone agreed tell that, the a heinous had the issue committed, crime been on which it should focus Darden had committed was whether it.
Finally, brought upon the Court finds that Darden himself gave “personal McDaniel’stirade because defense counsel opinion strength of the Ante, of the State’s at evidence.” Again, gives explanation 179. no of the Court how the state- quotes single, expression ment it of mild defense counsel’s —a “response” justified overall assessment evidence— represented it followed, consisted, which the extent perjury, all, on the at see comment evidence accusations opposing App. personal disparagements coun- 18-19, and beyond went id., sum, McDaniel so far sel, see ‘right “respond[ing] substantially in order to scale,’” reasoning Young pro- Young, S.,U. holding today. vides no at all for the Court’s basis gives discounting third the Court the effects reason improper supposed is the curative effect of the summations judge’s judge trial instructions: the had instructed jury that it to decide the the evidence and case on arguments Ante, of counsel were not that the evidence. objection court Darden’s 182. But the trial overruled expressions repeated that Darden McDaniel’s his wish leaving jury App. perhaps 31, thus killed, been *24 196
impression rele- that McDaniel’s comments were somehow judge’s question them. trial instruc- to the before vant attorneys law,” “trained the and thus tion that the were “extremely help- “analysis of the issues” could be that their jury suggested might Tr. have the ful,” 714, also pertinent their was the McDaniel’s tirade substance of deliberations. enjoyed suggests that because Darden
Fourth, the Court advantage having summation, he the last was the tactical prosecutors’ closing argument “tur[n] much of the able to jury against the the Ante, them.” at 182. But issue before guilty, not McDaniel’s was whether Darden was whether proper. question the this Court summation was And before agree with defense counsel’s criticism is not whether we by jury the was affected it. the summation but whether ultimately convicted, it is hard to see what Darden was Since “[djefense its the has for naked assertion basis opportunity very able to use the rebuttal counsel were (the effectively.” Young, U. at n. 15 Ibid.; S., 18, cf. 470 acquittal charge the most defendant’s serious “reinforces prosecutor’s that the remarks did under- our conclusion independently jury’s ability to the view the evidence mine fairly”). in essence, that error was harm- Fifth, finds, the Court against petitioner weight of the evidence less: “The heavy; eyewitness ‘overwhelming and circumstantial evi- the finding charges,’ support guilt all 2d, dence to So. jury’s in- the likelihood that the decision was 291, at reduced rejects argument.” Ante, at 182. The Court fluenced Mississippi, out Caldwell v. U. S. “no effect” test set identify (1985), n. it does not ante, but see decide harmlessness of error.3 standard it does use to inapposite The Court finds Caldwell offending because the comment in stage Caldwell sentencing occurred defendant’s trial and mis Ante, jury sentencing process. n. led as its role in the Eighth clearly guilt But Caldwell’s underpinnings extend to Amendment Every has standard that this Court em- harmless-error ployed, First, however, two salient features. once shares *25 identified, has burden shifts the error been the serious beneficiary was the show that the conviction not error to although formulations the Second, different tainted. in the of confidence in standard differ level harmless-error question required burden, the outcome to overcome that the .reviewing never the evidence a court is whether before justify conviction, absent an have been sufficient would the error its undermines confi- error, but, rather, whether unacceptable proceeding in the to an de- dence the outcome of Young, g., gree. S., e. v. 470 U. See, 20; United States (1967); Chapman 18, 386 U. S. Kotteakos v. California, States, U. S. United simply
Regardless used, I do not believe of which test is overwhelming so the evidence this case was it, of the record before conclude, can the basis written product prosecutors’ jury’s the of the mis- verdict was not damaging pieces most of evidence—the conduct. three by Phillip and Arnold Helen identifications Darden sufficiently prob- evidence—are all Turman and ballistics jury not me unconvinced that a ex- lematic leave egregious necessarily posed summation would to McDaniel’s have convicted Darden. capital sentencing. as Beck v. Ala- cases as well
determinations S., case, bama, under of this at 637-638. And the circumstances immediately upon jury’s sentencing hearing return followed where of less than a full verdict and summation consisted guilty of a the State’s transcript, I think the State must have assumed that page of see Tr. expressed repeatedly Department on the of Corrections and its attacks jury’s sentencing as die affect the decision well as that Darden would wish Indeed, guilt. found that the sum- the District Court its determination principal argu- “in during guilt phase State’s] were effect [the mations Supp., support penalty.” 613 F. n. 10. of the death ment Moreover, misleading jury a the relevant issues in a why as to do see misleading jury as to its pernicious than role. capital trial is somehow less photo array Arnold first identified Darden in a shown to hospital. suppressed him in the The trial court that out-of- following long argument concerning court identification reliability constitutionality procedures by which it was obtained. See Tr. 487-488.4
Mrs. Turman’s initial made identification was under even suggestive more circumstances. testified at She trial that preliminary hearing ap she was taken to a at which Darden peared identify “[t]o in order him.” Instead of being lineup, asked to view Darden Mrs. Turman was brought apparently courtroom, into the where Darden only present. man id., black See at 220-221. Over de objection, prosecutor fense counsel’s after the asked her sitting your man whether “this here” was “the man that shot *26 husband,” ibid., she identified Darden.5 Cf. Moore Illi v. (1977). 434 nois, U. S. 229-230 4 photographs Of the six array, in the immediately rejected Arnold four “[t]hey just because description” didn’t fit the given po he had earlier lice. photograph Tr. 457. Darden’s was one of no more than two that subject by name, identified the photo and under the name on Darden’s graph Department, Bartow, was the notation “Sheriff’s Florida” and the Id., date “9/9/73.” at 476-477. Arnold was aware at time of the iden September suspect tification on 11 recently that a had been arrested. place Mrs. Turman’s identification took following colloquy after the (Mr. court, prosecutor Mars), between the attorney and the defense (Mr. Hill): “THE identify. COURT: Ask her to Yes,
“MR. MARS: sir.
“Q: you Can see this man sitting here? Honor,
“MR. HILL: Your I am going object type to that identification. I
“THE COURT: am not. Sit down. Judge-
“MR. HILL:
“THE circumstances, Not under these COURT: Mr. Hill. Judge, “MR. attorney, HILL: even as a defense respect in shows no court, Court, much less for the and I— “THE appreciate— COURT: I
“MR. objection, HILL: And the I want on the record. by showups long condemned
The use of has been precisely they identifi- because can result unreliable Court, g., e. See, Denno, cations. Stovall S. (1967). photo Similarly, condemned the use of the Court has way arrays suspect’s photograph “is in some em- which the phasized.” States, Simmons v. United U. S. question in- and out- While the whether various suppressed ought is not of-court identifications to have been my reliability in their is Court,6 now before the confidence by proce- suggestiveness nonetheless undermined they particularly light were obtained, dures which describing earlier difficulties in the criminal. Mrs. Turman’s Finally, hardly overwhelming. the ballistics evidence is weapon conclusively purported murder tied neither Special Agent Cunningham to the crime nor to Darden. Investigation’s the Federal Bureau Firearms Identifica- Unit testified that the recovered at the scene of tion bullets gun, crime “could have he was the unwilling say been fired” from but weapon. fact had come from that appreciate “THE I that. This woman has COURT: It’s on the record. experience and had a traumatic she— my Judge, appreciate obligation
“MR. that. I still have an HILL: client. you
“THE if appreciate COURT: I that. Now want to be held in con- tempt, you pardon Alright, go me. ahead.
“Q: your Is this the man that shot husband? *27 Yes,
“A:
sir.”
Wainwright,
Darden v.
Corpus
See Pet. for Habeas
Case No. 79-566-
(MD Fla.) (May 21, 1979),
18-19;
pp.
Civ. T. H.
Tr. 218-219.
6
admissibility
Challenges
pre
to the
of the various identifications were
petition
sented Darden’s
this Court for direct review of his conviction
Florida,
Darden v.
Brief
Petitioner
T.
and sentence.
See
O.
(second
76-5382,
questions presented
and third
pp.
raising
No.
2-3
issues
identifications). Although
concerning
petition
the witnesses’
for cer-
(1976),
granted,
grant
429
917
tiorari was
U. S.
Court later limited its
(1977),
prosecutor’s closing argument,
to the issue
U. S. 1036
ultimately
improvidently granted,
writ as
and
dismissed the
Darden testified id., murder. in the and See robbery involvement on the of the crime day account of his actions 571-660. His and Arnold’s identi- Mrs. Turman’s only by was contradicted witnesses corrob- Indeed, a number of State’s fications. The trial who had judge of Darden’s account. orated parts found that he and testify “emotionally and heard Darden seen on its face to be his sincerity, proclaimed what appeared he sentence, viewed App. setting innocence.” inno- “repeatedly professed complete fact that Darden Id., as a factor. charges” mitigating cence of the determination jury’s this case rests on Thus, bottom, Phil- Turman and of three witnesses —Helen credibility Darden, on the other. side, on the one Willie Arnold, lip assault on I that McDaniel’s sustained cannot conclude jury’s ability did not affect very humanity Darden’s on the real evidence before it. the credibility question judge I a trial that was fair, I that he did not have Because believe him I would not allow conviction; Darden’s would reverse at a fair trial. death until he has been convicted to his go ( I—I I— however, be- fairly, if had been convicted Even Darden of the im- should be vacated because his death sentence lieve of a member of the venire who was for cause exclusion proper Witherspoon decisions in under this Court’s to serve qualified Wainwright Witt, Illinois, 391 U. S. (1968), v. v. Georgia, In Davis 122 (1976), 429 U. S.
U. S. *28 juror improper ren- of one exclusion held that the Court constitutionally per infirm se. a death sentence ders palpable. potential prejudice is Even case, Darden’s expressing stripped though reservations of members it was agree jury penalty, could not unani- the death about appropriate. mously 908; See Tr. sentence was that a death (dissenting opinion). 2d, F. at 1041 Witherspoon that excused for an Illinois statute concerned “ being ‘anyjuror that he examined, state shall, who cause capital punishment, scruples against or that has conscientious quoting opposed Ill. S., 512, at to the same.’” he is (1959). §743 that the The Court held ch. Stat., Rev. sentenced of a defendant the execution barred Constitution persons jury by ex- such had been from which to death large part holding on the rested That cluded for cause. jurors oppose recognition some who that even Court’s personal penalty and follow their beliefs can set aside death ap- death is an consider whether instructions to the court’s penalty. propriate 514-515, 7, 515-516, n. S., 391U. See again recently Term, we held once as last 520. As 9, 519, n. ju- “prospective distinguish between trial courts must capital punishment opposition not allow will rors whose jurors impartially apply the facts the law or view them to capital punishment, though opposed will nevertheless who, conscientiously apply at trial.” facts adduced law to the Adams v. 4; n. id., see also S., 421; Witt, U. (1980); Holman, Boulden v. 44-45 Texas, U. S. 478, 483-484 U. S. premise on a claimrests of Darden’s discussion Court’s single wording entirely depends of a on the claim
that the judge prior of ve- question to the exclusion the trial asked premise Murphy. is That ante, See nire member misunderstanding lay in its court’s error The trial mistaken. Witherspoon. proper under for exclusion standard question misunderstanding the court influenced both This *29 202 Murphy his answer. On this and its evaluation of
asked Murphy say any I assurance record, cannot properly excluded. members, venire to the voir dire of individual
Prior only judge excuse, intention to not announced his trial principles juror religious potential him made whose or moral any potential impose penalty, but also the death unable juror instructions, if he the court’s “would be who, did follow deleted). (emphasis against principles” App. going 6.7 his essentially indistinguishable from the stand- This is standard by disapproved by expressly employed Illinois and ard Witherspoon. juror If a who has reservations about morality penalty fol- or death nonetheless the wisdom “‘prevented] instructions, he lows the court’s has been substantially performance in] impair[ed of his duties as or dire limit voir pretrial concerning ju denying Darden’s motion penalty, the trial court stated: rors’ attitudes towards death juror examination my ruling prospective “It is if a states on his voir dire moral, principles and belief he religious his or conscientious that because of though unwilling penalty, recommend a even the facts would be death law, requirements he in has said meet the then effect and circumstances upon it and unwilling charge to follow the law the court shall he would it, unwilling it or if he did follow it would be disregard and be to follow therefore, against principles, his I would rule that would be dis- going (em- exists, App. disqualify If that I intend to qualification. for cause.” deleted). phasis correctly judge general that “the stated the stand- The Court’s statement dismissal,” ante, 2, immediately n. on the heels of a ard for comes quotation judge’s ruling which omits critical truncated trial it, against principles, going phrase, “if he did follow it would be therefore, disqualification.” rule that would be would objection voir dire continuing proposed its gave petitioner a The court objection continuing App. enough Even if this were not questioning. petitioner’s preserve claim—and the so standing alone to Court does not specific objection was made to the “[n]o hold —the statement that exeusal counsel,” ante, flatly by is Murphy contradicted defense Immediately following Murphy’s exeusal, the di- transcript. trial court stenographer object being to “note the defendant’s to him ex- rected the Tr. 165. cused for cause.” juror oath,’” and his in accordance with his instructions quoting To Adams, S., 448 U. at 45.
Witt, S., only permit about individuals who have no reservations those decreeing exercising truly responsibility of “the awesome human,” California, death for a fellow McGautha (1971), juries surely capital would 183, 208 to serve on U. S. juries “uncommonly empaneling will- mark' a return to the ing Witherspoon, S., die,” to condemn a man to U. entirely *30 statement
This case is thus unlike Witt. Witt’s juror cannot reduced to a cate- that determinations of bias be peculiar its reliance on the abil- S., 424, 469 U. at and chism, credibility ity judges the demeanor and of trial to observe “every jurors, potential make sense when there is id., at applied judge . . . the correct standard.” that the indication today provides the record before us no such at 431. But impossible judge’s It is to determine whether the indication. Murphy finding reflected a that would be unable of bias belief Murphy follow the court’s instructions or a belief that personal In fact, have to set aside his beliefs to do so. would Murphy gave any never indication that he could not follow proving Murphy’s the court’s The burden of instructions. Id., at 423-424. The Court’s bias rested on the State. surrounding Murphy’s present heavy reliance on “the context simply support its conclusion at cannot exclusion,” ante, interpretation improper of Wither- the trial court’s because spoon infected that context. “the trial court could take ac-
The Court’s statement that present throughout Murphy an en- fact that count of the purpose meaning questions that made the tire series of absolutely inquiry clear,” ante, suffers from the Witt assumption implausible defect.8 find the Court’s similar to the “Witt inquiry” chronology. reflects inattention to Even to refer before Witt years dispel sought a dozen This ease was tried about application Witherspoon" under surrounding “general confusion S., years. country had for 15 469 U. which courts across the labored meaning of Witt could be clear to a layman like purpose 418. How the closely questioning Murphy daylong that followed assumption jurors. then correct, But if that were other anticipated Murphy being should also assume substantially prevent im- his beliefs would or asked whether juror, jurors pair performance of as a as other ex- his duties pressing been That similar sentiments had asked. three jurors, questioning, more under somewhat extensive other they explicitly not think could vote stated that did (juror Varney); (juror penalty, id., Tr. 44 at 107 the death see Maher), nothing Carn); (juror says id., at 109-110 about inability personal Murphy put shared their aside whether obey right juror. may beliefs and his oath as a Witt “many simply enough questions cannot be veniremen asked point their has to reach the where bias been made ‘unmistak- ably judge clear,’” 424-425; however, S., here, given question might ask the have him did not even one ability wrong insight Murphy’s The real into serve. an- question begets. Bickel, is what no at all Cf. A. swer Dangerous Branch 103 Least reading lengthy transcript
A voir dire leads close me *31 easily that the trial court’s more ex- to conclude behavior is plained by Murphy’s appearance jury in the at the end box jury long day questioning finish and the desire to selec- by any impression part expeditiously definite on the tion than judge Murphy unqualified. trial But neither eagerness get started, the trial court’s trial nor impatience progress Court’s of Darden’s constitu- challenges sentence, to his conviction and tional death see, (1985) g., dissenting J., e. 473 U. S. C. (Burger, Murphy judge trying to the this case and to when were unclear fed- appellate explained. Moreover, eral and state courts is nowhere from inquiry Murphy’s perspective, purpose was to obtain from him regarding background truthful answers his and beliefs. His oath as a juror feelings required strong him to penalty, reveal about the death if follow the judge’s even he believed he could instructions notwith- standing feelings. those grant years elapsed
from the of certiorari because 12 had and since Darden’s conviction sentence and no fewer than judges case),9 Murphy’s “95” had reviewed the renders ex- justifiable clusion or harmless.
HHI—I l-H during past year Young, Twice United States v. —in (1985), again today 470 U. S. Court has been —this clearly improper prosecutorial during faced with misconduct time, summations. Each the Court has condemned the be- Forty years ago, Judge havior but affirmed the conviction. in Frank, dissent, Jerome N. discussed the Second Circuit’s approach language in similar we would do well to remember today: vigorous language
“This court has several times used
denouncing government
in
counsel for such conduct as
9 public
grant
extremely
Indeed,
A
dissent from a
of certiorari is
rare.
know of no other recent case which a Justice has dissented on the
ground
by
petitioner
that the claims raised
at least four Jus
—which
worthy
tices must have found
of full consideration —were meritless. See
(1959) (memoran
Price,
246, 247,
ex rel.
also Ohio
Eaton v.
360 U. S.
n.
J.)
(finding only one
Bhennan,
dum of
instance of such a dissent —the ex
traordinary
Youngstown
Sawyer,
case of
Sheet & Tube Co. v.
that, helpless piety is, think, I undesirable. It means tude alleged coupled offense, actual condonation of counsel’s disapprobation. If to do we continue noth- with verbal prevent ing practical to conduct, such we should cease disapprove it as if it. For otherwise will be we declared attorneys, effect, ‘Government without fear rever- may say just please addressing about sal, what subject pretend-rules. juries, If for our rules on the are prosecutors “disapproved” a result of re- win verdicts as deprive them of their marks, victories; we will not we merely go through expressing displeas- the form of will deprecatory opinions we in our ure. The words use purely are ceremonial’ such occasions Government employing eager counsel, tactics, who, such are the kind gladly pay price victories, win the small of a rit- will spanking. practice ualistic verbal calling court —re- the bitter tear shed as he ate the Walrus deplorably cynical oysters attitude towards —breeds (footnote omitted). judiciary” United States v. cert, Co., Antonelli Fireworks 155 F. 2d de- S. 742 nied, wring must more this Court do than its hands believe juries improper legal
when a State uses standards select capital permits prosecutors pervert cases adver- sary process. I therefore dissent.