BOULDEN v. HOLMAN, WARDEN.
No. 644.
Argued February 26, 1969.
Decided April 2, 1969.
William B. Moore, Jr., by appointment of the Court, 393 U. S. 930, argued the cause and filed a brief for petitioner.
David W. Clark, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was MacDonald Gallion, Attorney General.
Mr. Justice Stewart
delivered the opinion of the Court.
The petitioner was convicted in the Circuit Court of Morgan County, Alabama, of first-degree murder, and was sentenced to death in accordance with the verdict of the jury. After the Alabama Supreme Court affirmed the conviction, 278 Ala. 437, 179 So. 2d 20, the petitioner instituted this habeas corpus proceeding in the United States District Court for the Middle District of Alabama. District Judge Frank M. Johnson, Jr., denied relief, 257 F. Supp. 1013, and the Court of Appeals for the Fifth Circuit affirmed. 385 F. 2d 102, rehearing denied, 393 F. 2d 932, 395 F. 2d 169. We granted certiorari. 393 U. S. 822.
I.
Although there was substantial additional evidence of the petitioner’s guilt, his conviction was based in part on a confession he had made some days after his arrest. His request for habeas corpus relief rested on a claim that the introduction of that confession into evidence violated his rights under the Constitution. Since his trial antedated our decisions in Escobedo v. Illinois, 378 U. S. 478, and Miranda v. Arizona, 384 U. S. 436, that claim is essentially a contention that under the constitutional standards prevailing prior to those decisions, his confession was made involuntarily. See Johnson v. New Jersey, 384 U. S. 719; Davis v. North Carolina, 384 U. S. 737.
After holding a full hearing regarding the issue and considering the state court record, the District Court, in an opinion applying the proper constitutional standards, was unable to conclude that the petitioner’s confession was “other than voluntarily made.” The confession, the court found, “simply was not coerced.” 257 F. Supp., at 1017, 1016. The Court of Appeals, likewise applying appropriate standards, similarly could “find from the record here no plausible suggestion that Boulden’s will was overborne . . . .” 385 F. 2d, at 107.
Little purpose would be served by an extensive summation of the record in the District Court proceedings and in the state trial court. The question whether a confession was voluntarily made necessarily turns on the “totality of the circumstances” in any particular case, and most of the relevant circumstances surrounding the petitioner’s confession are set out in the opinions of the District Court and the Court of Appeals. Suffice it to say that we have made an independent study of the entire record and have determined that, although the issue is a relatively close one, the conclusion reached by the District Court and the Court of Appeals was justified.
II.
In seeking habeas corpus the petitioner challenged only the admission of his confession into evidence, and his petition for certiorari was limited to that claim. In his brief and in oral argument on the merits, however, he has raised a substantial additional question: whether the jury that sentenced him to death was selected in accordance with the principles underlying our decision last Term in Witherspoon v. Illinois, 391 U. S. 510.
We held in Witherspoon that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U. S., at 522. In the present case, the record indicates that no less than 15 prospective jurors were excluded by the prosecution under an Alabama statute that provides:
“On the trial for any offense which may be punished capitally, ... it is a good cause of challenge by the state that the person has a fixed opinion against capital . . . punishmen[t] .
That statutory standard has been construed by the Alabama Supreme Court to authorize the exclusion of potential jurors who, although “opposed to capital punishment, . .. would hang some men.” Untreinor v. State, 146 Ala. 26, 33, 41 So. 285, 287.
However, as we emphasized in Witherspoon, “The critical question ... is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood— or misunderstood — by prospective jurors.” 391 U. S., at 516, n. 9. “The most that can be demanded of a venireman in this regard,” we said, “is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out . . . .” Id., at 522, n. 21. We made it clear that “[u]nless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Id., at 516, n. 9.
It appears that at the petitioner’s trial two prospective jurors were excluded only after they had acknowledged that they would “never” be willing to impose the death penalty. Eleven veniremen, however, appear to have been excused for cause simply on the basis of their affirmative answers to the question whether, in the statutory language, they had “a fixed opinion against” capital punishment. The following excerpt from the record is typical of those instances:
“THE COURT: Do you have a fixed opinion against capital punishment?
“MR. SEIBERT: Yes, sir.
“MR. HUNDLEY: We challenge.
“THE COURT: Defendant?
“MR. CHENAULT: No questions.
“THE COURT: Stand aside. You are excused.”
Two other veniremen seem to have been excluded merely by virtue of their statements that they did not “believe in” capital punishment. Yet it is entirely possible that a person who has “a fixed opinion against” or who does not “believe in” capital punishment might nevertheless be perfectly able as a juror to abide by existing law— to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.
It appears, therefore, that the sentence of death imposed upon the petitioner cannot constitutionally stand under Witherspoon v. Illinois. We do not, however, finally decide that question here, for several reasons. First, the Witherspoon issue was not raised in the District Court, in the Court of Appeals, or in the petition for certiorari filed in this Court. A further hearing directed to the issue might conceivably modify in some fashion the conclusion so strongly suggested by the record now before us. Further, it is not clear whether the petitioner has exhausted his state remedies with respect to this issue. Finally, in the event it turns out, as now appears, that relief from this death sentence must be ordered, a local federal court will be far better equipped than are we to frame an appropriate decree with due regard to available Alabama procedures.
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court, where the issue that has belatedly been brought to our attention may be properly and fully considered.
It is so ordered.
Mr. Justice Black, while still adhering to his dissent in Witherspoon v. Illinois, 391 U. S. 510, 532, acquiesces in the Court’s judgment and opinion.
Mr. Justice Fortas took no part in the consideration or decision of this case.
Two confessions were in fact obtained, although only the second was actually introduced into evidence. Both the District Court and the Court of Appeals properly noted that the second confession might have been the “end product of the earlier” one, in that “the accused [may have been] acutely aware that he had earlier made admissions against his interest and was, therefore, merely repeating his ostensibly uneraseable [sic] words of confession.” 385 F. 2d, at 106. See Darwin v. Connecticut, 391 U. S. 346; Beecher v. Alabama, 389 U. S. 35; cf. United States v. Bayer, 331 U. S. 532, 540. Consequently, in order to determine whether the second confession was properly admitted, they passed upon the voluntariness of the first as well as the second confession. We have considered the record in like fashion.
There is evidence that even before his two formal confessions were obtained, the petitioner had, shortly after his arrest, admitted killing the deceased. The evidence was controverted, both as to whether the petitioner made any such admission and as to whether, if he did, the admission was voluntary. It is suggested in dissent that because the opinions of the District Court and the Court of Appeals do not explicitly refer to that evidence, it must be assumed that those courts did not consider it, and that the conclusions they reached should therefore not be sustained. We cannot agree. The petitioner has consistently contended that the events immediately following his arrest contributed to the involuntariness of his later confessions, and we are unable to assume that the evidence referred to was not considered by the District Court and the Court of Appeals. In any event, our own decision with respect to the voluntariness issue has been reached with that evidence fully in mind.
In affirming the petitioner’s conviction, the Alabama Supreme Court had reached a like conclusion. 278 Ala., at 446-452, 179 So. 2d, at 28-34.
Fikes v. Alabama, 352 U. S. 191, 197.
See Spano v. New York, 360 U. S. 315, 316.
Ala. Code, Tit. 30, § 57.
“THE COURT: . . . Do you have a fixed opinion against capital or penitentiary punishment?
“JOHN L. NELSON raised his hand.
“MR. HUNDLEY: Challenge.
“THE COURT: Do you have a fixed opinion against capital or penitentiary punishment?
“MR. NELSON: Capital punishment.
“THE COURT: You think you would never be willing to inflict the death penalty in any type case ?
“MR. NELSON: Yes, sir.
“MR. HUNDLEY: We challenge.
“THE COURT: Defendant?
“MR. CHENAULT: No questions.
“THE COURT: Stand aside, Mr. Nelson.
“E. 0. MOON raised his hand.
“THE COURT: Do you have a fixed opinion against capital or penitentiary punishment ?
“MR. MOON: Capital punishment.
“THE COURT: You mean you would never inflict the death penalty on [sic] any case?
“MR. MOON: That’s right.
“MR. HUNDLEY: Challenge.
“THE COURT: Defendant?
“MR. CHENAULT: No questions.
“THE COURT: Stand aside, Mr. Moon.”
“THE COURT: What is your position on capital punishment or penitentiary punishment?
“MR. COLLIER: I don’t believe in capital punishment.
“THE COURT: State?
“MR. HUNDLEY: Challenge.
“THE COURT: Any questions, Mr. Chenault?
“MR. CHENAULT: No questions.
“THE COURT: You are excused. . . .
“MR. PATTON: . . . and I don’t believe in capital punishment.
“MR. HUNDLEY: I’ll challenge Mr. Patton on that answer, on the ground he doesn’t believe in capital punishment.
“THE COURT: Any questions by the defendant?
“MR. CHENAULT: No questions.
“THE COURT: We . . . will let you stand aside.”
As the initial portion of this colloquy and that set out in footnote 6 indicate, Alabama law also authorizes the exclusion of any potential juror who has a “fixed opinion against . . . penitentiary” punishment. Ala. Code, Tit. 30, § 57. Two veniremen were excused when they merely responded affirmatively to the disjunc-tively phrased question whether they had “a fixed opinion against capital or penitentiary punishment.” It is thus not possible to discern from the record which type of punishment they objected to, although the more likely assumption would be that it was capital punishment. We did not in Witherspoon pass upon the validity of the “penitentiary” analogue to death-qualification of jurors, and we intimate today no opinion regarding that question.
The Court of Appeals’ decision was rendered prior to our decision in Witherspoon.
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