By Don J. DeBenedictis
Associate Editor
Fulton County Daily Report
March 19, 1996
Over a pair of sharp dissents, the Georgia Supreme Court has upheld a death penalty imposed by a jury from which the trial judge excluded five people who had doubts about capital punishment.
The majority held that even if there were "ambiguities" during jury selection, the trial judge's decisions could not be overturned easily.
In this case, Superior Court Judge E. Mullins Whisnant of the Chattahoochee Judicial Circuit "undertook an exhaustive and conscientious effort to determine whether [the prospective jurors'] views on the death-penalty would prevent or substantially impair the performance of their duties," Justice George H. Carley wrote for the five-justice majority.
It does not matter, Carley continued, that "at some point during voir dire, each of the prospective jurors may have given answers, which, if considered in isolation, would indicate that his or her opposition to the death penalty was not 'automatic.' " Greene v. State, No. S95P1366 (Sup. Ct. Ga. decided March 15, 1996).
In a lengthy dissent, Chief Justice Robert Benham blasted Whisnant's "practice of removing for cause any prospective juror with serious concerns about imposing the death penalty" as "plainly unconstitutional."
He said the majority's deference to the trial judge's decisions "is a dramatic departure from precedent" that "seriously undermines" the Supreme Court's ability to review the removal of potential jurors.
Justice Leah J. Sears concurred in Benham's dissent and went on to write a second, short dissenting opinion of her own. In it, Sears criticized the majority for basing its decision solely on a U.S. Supreme Court decision, Wainwright v. Witt, 469 U.S. 412 (1985), but not on Georgia cases interpreting that opinion. Under those later cases, "each of the five prospective jurors was qualified to serve, and ... the trial court committed reversible error in ruling otherwise," Sears wrote.
The dissents concerned only the imposition of the death penalty. All seven justices of the Supreme Court voted to uphold the defendant's convictions for murder, aggravated assault and armed robbery.
The defendant, Daniel Greene, was accused of robbing a convenience store in Taylor County and of fatally stabbing a customer and wounding the store clerk. Although he had apparently confessed at one point, at trial he contended that he remembered only having a severe headache inside the store after smoking a cigarette given him by an acquaintance, according to the majority opinion.
In the appeal of Greene's conviction and sentence, the defense listed 30 potential errors made by the trial court, including that the five prospective jurors "were disqualified merely for expressing 'qualms' about the death penalty or for 'leaning' toward a life sentence," according to the majority opinion.
But Carley indicated that Whisnant had apparently found more than qualms or leanings. He stressed that trial judges may remove potential jurors even if the jurors' opposition to capital punishment "may not appear with 'unmistakable clarity.' "
"The relevant inquiry is whether the trial court's finding that the proper standard for death- penalty disqualification was met as to each of the prospective jurors is 'fairly supported' by the record 'considered as a whole,' " Carley wrote, joined by Justices Carol W. Hunstein, Hugh P. Thompson and P. Harris Hines.
Justice Norman S. Fletcher concurred specially, but without writing an opinion. Hunstein dissented from another portion of Carley's opinion, also without writing separately.
In his dissent, Benham quoted extensively from the record to show that it supported retaining at least four of the five prospective jurors. Those four "unambiguously indicated on voir dire that they could vote to impose a death sentence in an appropriate case," he wrote.
For instance, one said "unequivocally and repeatedly" she could vote for death in the right circumstances. Another said she "could" vote for death although she had "misgivings" about sending someone to the electric chair, according to Benham.
But misgivings and doubts aren't enough, Benham argued. A juror cannot be excused because he or she "would have difficulty imposing a death sentence, has qualms about the death penalty or is leaning toward a life sentence," he wrote, citing a 1992 Georgia Supreme Court decision, Jarrell v. State, 261 Ga. 880.
"To eliminate from the venire all persons voicing such scruples is to distort the 'conscience of the community' which the jury is assembled to express. ... Execution of a death sentence imposed by a jury of such skewed composition would unconstitutionally deprive the defendant of life without due process of law," the chief justice wrote.
In separate portions of their dissents, Benham and Sears both disagreed with another aspect of Carley's opinion. Carley had rejected a challenge by the defense to biblical references the prosecutor, then-District Attorney Douglas C. Pullen, made in arguing for a death sentence.
Carley held that the prosecutor's argument consisted "entirely of references to principles of divine law related to the penological justifications for the death penalty, including ... retribution and ... mercy. It is just this type of argument that was found to be authorized" by earlier opinions.
Benham noted that the prosecutor had described himself as "a plain old country Baptist" and cited the Sermon on the Mount and the Old Testament's call for an eye for an eye and a tooth for a tooth. Pullen is now a Superior Court judge.
"[T]he improprieties in this case were of such magnitude that there is a reasonable probability that they may have altered the outcome of the sentencing phase," Benham wrote.
Sears said those references in the closing argument amounted to "inflammatory appeals to the private religious beliefs of the jurors, and were therefore improper."
(Fulton County Daily Report is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
