Timothy Wesley McCorquodale v. Charles Balkcom, Warden, Georgia State Prison

KRAVITCH, Circuit Judge:

The petitioner, Timothy Wesley McCor-quodale, was convicted by a jury of first degree murder and sentenced to death.¹ The Georgia Supreme Court affirmed the conviction and sentence on direct appeal, McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), and the United States Supreme Court denied a petition for writ of certiorari. McCorquodale v. Georgia, 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976).

The petitioner subsequently filed a petition for a writ of habeas corpus in state court, which was denied, McCorquodale v. Stynchcombe, 239 Ga. 138, 236 S.E.2d 486 (1977), cert. denied, 434 U.S. 975, 98 S.Ct. 534, 53 L.Ed.2d 467 (1977). McCorquodale then filed an extraordinary motion for a new trial based upon newly discovered evidence, which, after an evidentiary hearing, was also denied, and the denial was affirmed on appeal. McCorquodale v. State, 242 Ga. 507, 249 S.E.2d 211 (1978).

After his failure to obtain relief in the state courts, McCorquodale brought the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Georgia. He raised six contentions in support of his petition, attacking both his conviction and his sentence. The district court found all of the arguments to be without merit and denied habeas corpus relief. McCorquodale v. Balkcom, 525 F.Supp. 408 (N.D.Ga.1981). A panel of this court affirmed the denial of relief as to five of McCorquodale’s arguments, but reversed as to his sentence, directing that the writ of habeas corpus issue because the petitioner’s constitutional right to a fair and impartial jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), had been violated. McCorquodale v. Balkcom, 705 F.2d 1553 (11th Cir.1983). This court elected to hear the case en banc, and we now hold that the district court properly denied the writ in concluding that the voir dire procedures comported with Wither-spoon standards.

I. The Witherspoon Rule

The Supreme Court in Witherspoon v. Illinois enunciated the rule 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. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

391 U.S. at 522, 88 S.Ct. at 1777 (footnotes omitted). The Court clarified in a footnote the two reasons why a juror could be excused for cause in the Witherspoon context:

We repeat, however, that nothing we say today bears upon the power of a state to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made it unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21 (emphasis in original). Witherspoon’s holding thus struck a balance between “the state’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths,” Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), and a defendant’s right to have a neutral jury not “uncommonly willing to condemn a man to die.” Witherspoon, 391 U.S. at 521, 88 S.Ct. at 1776; see also Adams, 448 U.S. at 44, 100 S.Ct. at 2526.

The petitioner advances three arguments as to why the voir dire proceedings in his case violated Witherspoon’s standards: (1) the collective questioning of the venireper-sons and their non-verbal responses failed to ensure that each individual juror would unequivocally refuse to impose the death penalty or impartially deliberate on the defendant’s guilt; (2) the Witherspoon questions asked at voir dire were insufficient; and (3) the questions asked to and the responses by two of the jurors dismissed for cause, jurors Woodlief and Kidd, were insufficient.

II. Group Questioning and Non-Verbal Responses

At voir dire the prosecutor collectively asked a series of three questions to the approximately sixty jurors comprising the jury pool. The prosecutor first asked:

Are you conscientiously opposed to capital punishment? If you’re conscientiously opposed to capital punishment, if you will, please stand. If you are not conscientiously opposed to capital punishment, remain seated.

Nineteen jurors stood up in response to this question.

The prosecutor then posed the two additional questions required by Witherspoon to those jurors who had stood up, asking them to step forward if they would answer the question affirmatively:

The first question is this. Would you allow your opinion about capital punishment to prevent you from voting for the death penalty in this case, regardless of what the evidence was?

The [second] question is this. Would you allow your opinion about capital punishment to prevent you from being a fair and impartial juror on the issue of guilt or innocence as distinguished from the issue of punishment? If you would, would you please step forward.

The prosecutor then moved the court to dismiss the fifteen jurors who had stepped forward. The court granted the motion over defense counsel’s general objection.

The manner in which voir dire was conducted in this case raises two questions of first impression:² whether Witherspoon requires individual questioning of prospective jurors and whether their responses must be verbal. Necessarily involved in answering the last question is another issue which has yet to be resolved in the Witherspoon context: ³ what degree of deference, if any, should be granted to a trial court’s assessment of whether a juror’s responses are “unmistakably clear” so as to satisfy With-erspoon.

We hold that group questioning and nonverbal responses do not constitute a per se violation of Witherspoon. Witherspoon governs the substance of the inquiry to be made, not its form, and only requires that the voir dire method used for questioning and receiving responses allows a court to determine in the particular case at hand that the excluded venirepersons “made unmistakably clear” that their attitude toward the death penalty would either automatically cause them to vote against the death penalty or prevent them from impartially deciding the defendant’s guilt.

In this case, posing the Witherspoon questions to the jury pool as a group did not prevent the trial court from making this necessary determination. The questions asked by the prosecution went immediately to the relevant Witherspoon inquiries and carefully tracked the wording in Wither-spoon.⁴ Furthermore, the responses to be made by those venirepersons responding affirmatively to the questions — standing up in answer to the first question and stepping forward as to the next two questions — were clearly stated to the jurors and were not susceptible to misunderstanding.

The petitioner argues, however, that the group questioning was an “all or nothing” affair, and that individual questioning may have revealed that certain jurors were equivocating in their attitudes. This argument is without merit for several reasons.

First, nothing in the record indicates that the venirepersons were prevented from indicating that they did not understand the questions or from asking for clarification. Second, the court did not prevent defense counsel from asking further questions or requesting individual questioning of venirepersons; defense counsel entered only general objections without specifying the precise nature of his objection. Once the state clearly establishes a potential juror’s unequivocal opposition to the death penalty, which in this case the questions asked and the jurors’ responses accomplished, it is then incumbent upon the defendant to make an objection specifying why the juror should not be dismissed and to request further questions that would clarify any perceived ambiguity or equivocating by the juror.⁵ Cf. Goodwin v. Balkcom, 684 F.2d at 816 (defense counsel’s failure to raise Witherspoon violation is evidence of ineffectiveness); Burns v. Estelle, 626 F.2d 396, 398 (5th Cir.1980) (en bane)⁶ (error to deny defense counsel’s request for further questioning). See also, O’Bryan v. Estelle, 714 F.2d at 378; Porter v. Estelle, 709 F.2d 944 (5th Cir.1983). Third, the Witherspoon questions were strongly and clearly worded so as to evoke an affirmative answer only from those jurors with unequivocating beliefs. In this sense, the petitioner’s “all or nothing” argument would actually work in his favor — initially equivocating jurors who might on further questioning answer the Witherspoon questions “yes” would remain seated, and only those jurors who could answer the questions “yes” without hesitation would stand. Finally, even where individual questioning is conducted, a juror must eventually make the “all or nothing” decision of answering the Witherspoon questions “yes” or “no.”⁷ As used in this case, therefore, group questioning complied with Witherspoon’s directive.⁸

The analysis of group voir dire developed above equally applies to the adequacy of the non-verbal responses. The relevant inquiry is whether the non-verbal responses served in this case to make “unmistakably clear” the excused jurors’ unequivocal opposition to the death penalty or their inability to impartially decide the defendant’s guilt. Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21.

In assessing the adequacy of a venireperson’s response to Witherspoon questions, a reviewing court must grant some deference to the trial court’s assessment of the juror’s demeanor and clarity of his answer. Whether verbal or non-verbal, a response once reduced to a written record may not adequately convey the strength of the juror’s response. Even a simple “yes,” although on a cold record appearing crystal clear, can be delivered in a manner that conveys doubt. Witherspoon requires a reviewing court to independently review the record to ensure that the exclusions were proper, but that review must take into account that' the trial judge was in a much better position to evaluate the clarity of a juror’s response. See O’Bryan v. Estelle, 714 F.2d at 395 (Higginbotham, J., concurring).

The juror’s responses in this case were unambiguous acts which were sufficient to make “unmistakably clear” their answers to the Witherspoon questions. Potential jurors were asked to stand up if conscientiously opposed to the death penalty and to step forward if either unequivocally opposed to the death penalty or if their views would prevent impartial deliberation of the defendant’s guilt. The trial court was able to observe the jurors’ responses and demeanor for hesitancy or uncertainty that would have indicated that their responses were not “unmistakably clear.” Moreover, defense counsel did not bring to the court’s attention any jurors responding to the question who appeared to be equivocating, which further indicates that the voir dire was satisfactory. On the basis of these facts, we cannot find that the non-verbal responses failed to satisfy Witherspoon’s “unmistakably clear” standard.

Non-verbal responses and group voir dire are not necessarily the preferred method for voir dire in the Witherspoon context. Individual voir dire and verbal responses may very well be less susceptible to error.⁹ Witherspoon, however, does not require that any one form of voir dire be used or that a juror’s philosophical reasons for opposing the death penalty be explored. Instead, it only requires that the method employed and the questions asked evoked-non-ambiguous answers that satisfied the With-erspoon “unmistakably clear” standard. Applying that principle to this case, we find that the method of voir dire used here satisfied Witherspoon’s mandate.

III. Sufficiency of the Witherspoon Questions

The petitioner raises two specific challenges to the sufficiency of the Wither-spoon questions asked at voir dire. His first argument focuses on the language of the question:

Would you allow your opinion about capital punishment to prevent you from voting for the death penalty in this case, regardless of what the evidence was?

He argues that the inclusion of the phrase “in this case” violates Witherspoon’s admonishment that “a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the ease before him.” 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. Defense counsel had objected generally to the question, without specifying this argument as the basis of his objection.

The argument ignores the clear import of the voir dire question. The phrase “in this case” was not intended to refer specifically to the petitioner’s case, and a reasonable juror would not have interpreted the phrase as asking him in advance if he “would in fact” vote for the death penalty in the petitioner’s case.¹⁰ Rather, the phrase was used in the same sense that the Wither-spoon Court used the phrase “in the case before him” in explaining that venireper-sons could be excused only if they would not impose the death penalty “without regard to any evidence that might be developed at the trial of the case before them. ...” Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. (emphasis added).

Petitioner next urges that in addition to the two Witherspoon questions that were actually posed, a third question should have been asked as to whether a juror could subordinate his views to his oath as a juror to obey the law. Petitioner relies on footnote seven in Witherspoon for this proposition:

It is entirely possible, of course, that even a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as juror and to obey the law of the state.

391 U.S. at 514 n. 7, 88 S.Ct. at 1773 n. 7. Petitioner would thus have us add a third prong to the two-prong test outlined in footnote twenty-one of Witherspoon.

This court has already rejected petitioner’s argument on one prior occasion:

Nowhere in ... footnote [7], or in any other part of the opinion, does the Court even imply that a trial court must give the instructions suggested by the petitioner, and we decline to so hold.

Spinkellink v. Wainwright, 578 F.2d 582, 593 n. 14 (5th Cir.1978). We adhere to Spinkellink!s holding as the proper result in light of Witherspoon’s purpose and reasoning. Footnote seven in Witherspoon merely explained the rationale behind the opinion, that potential jurors cannot be excluded for their views on the death penalty unless it would prevent them from following their oaths as jurors. This concern is more than adequately covered by the two questions asked in voir dire based upon footnote twenty-one of the Witherspoon opinion. The very principle underlying the questions asking jurors whether their views on the death penalty would cause them to automatically vote against the death penalty or preclude them from deliberating impartially on the defendant’s guilt is to discern whether the jurors would follow their oaths. The petitioner’s proposed third question, therefore, is already subsumed under the two questions that were asked.

IV. Jurors Woodlief and Kidd

After the group voir dire, the prosecutor conducted individual questioning of the remaining jurors, which resulted in jurors Woodlief and Kidd being excused for cause. Petitioner challenges these excusáis on Witherspoon grounds.

The excusal of Woodlief was based on the following exchange:

Q: Do you really believe in capital punishment?

A: No.

Q: You don’t?

A: No, I don’t. It’s different being faced, you know, discussing capital punishment and sending someone to the electric chair.

THE COURT: You didn’t understand the question that was posed to you a while ago?

THE JUROR: Yes, I did at that time. I thought that under certain situations and possibly to rationalize this to myself, but sitting here and observing, I don’t think I could do it, I really don’t.

THE COURT: All right, Mr. Ridley. That’s grounds for excusal for cause. You may be excused.

MR. RIDLEY: Your honor, may I invoke the same objections as to the others?

THE COURT: Yes. You may be ex- • cused.

Focusing on Woodlief’s use of the word “think,” the petitioner argues that Wood-lief’s excusal for cause was improper because she did not unequivocally state that she could not impose the death penalty.

A review of a Witherspoon excusal necessitates an examination of the “totality of the circumstances of the voir dire” because Witherspoon “does not require that the venire person utter a pat phrase ... . ” Witt v. Wainwright, 714 F.2d 1069, 1083 (11th Cir.1983). Moreover, the fact that a juror initially stated that he could follow his oath and then later changed his mind does not demonstrate that a Witherspoon violation has occurred. It is the juror’s ultimate conclusion by which the court judges whether the juror is unequivocally opposed to the death penalty. See Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), cert. denied, — U.S. —, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983); O’Bryan v. Estelle, 714 F.2d at 381-82.

Analyzed from the foregoing prospective, we find that too much is made of Woodlief’s use of the word “think.” Placed within the context of her entire voir dire, her response, “I don’t think I could do it, I really don’t,” is unambiguous and unequivocal.

Woodlief stated that she had understood the Witherspoon questions¹¹ and proceeded to explain that upon further thought she realized that:

It’s different being faced, you know, discussing capital punishment and sending someone to the electric chair ....

I thought that under certain situations and possibly to rationalize this to myself, but sitting here and observing, I don’t think I could do it, I really don’t.

This narrative evidences an individual who understood the questions asked, reflected upon them, and concluded that she could not impose the death penalty. Her statements, coupled with the trial judge’s ability to observe Woodlief’s tone of voice and demeanor for indecisiveness, allows only one reasonable interpretation of Woodlief’s repetitive statement, “I don’t think I could do it, I really don’t”: she unequivocally believed that she could not impose the death penalty regardless of the evidence presented.

Woodlief’s voir dire, therefore, does not fall within the ambit of those cases holding a juror’s response inadequate under Wither-spoon. In those cases, the juror’s response was insufficient either in light of the ambiguity of the questions asked¹² or because the reply itself indicated confusion or ambiguity that was not clarified by the voir dire.¹³ In contrast, Woodlief was responding to properly stated Witherspoon questions and undertook an explanation that allows us to interpret the meaning of her answer without having to engage in speculation as to what her replies would have been if further questions had been propounded. Compare Burns v. Estelle, 592 F.2d 1297, 1301 (5th Cir.1979), aff’d 626 F.2d 396 (en banc).

In retrospect, the trial judge ideally would have repeated the Witherspoon questions to Woodlief, but the court’s failure to conduct a perfect voir dire does not prevent us from finding that, based upon all the circumstances, Woodlief understood the questions previously asked and had come to an unequivocal decision that she could not impose the death penalty.

We conclude likewise, based upon a review of the totality of the circumstances, that juror Kidd was not improperly excused. Kidd’s voir dire consisted of the following:

Q: Do you really believe in capital punishment?

A: To a certain extent.

Q: To a certain extent?

A: Yes, sir.

Q: Do you feel there are cases where under the evidence it would be a right and just verdict?

A: Well, in a way.

Q: Well, when it comes down, like the last lady [Ms. Woodlief] said, from a theoretical point to where a juror would be asked to vote, do you think you could really never vote for the death penalty no matter what the evidence was?

A: No, sir.

Q: You don’t think you could?

MR. ENGLAND: If your honor please, I believe it [sic] should be excused for cause.

THE COURT: You say you never could vote for it regardless of the circumstances?

THE JUROR: No, sir.

THE COURT: Did you hear the question that was posed to you just a while ago? Did you understand the question?

THE JUROR: No, I did not understand.

THE COURT: You could not under any circumstances vote for the death penalty?

THE JUROR: No.

THE COURT: Is that right, under any circumstances?

THE JUROR: No.

THE COURT: In that case, you may be excused.

MR. RIDLEY: May the same objections be noted?

THE COURT: Yes.

Although Kidd stated that he did not initially understand the questions asked at group voir dire, he was asked four times during individual voir dire if he could vote for the death penalty under any circumstances,¹⁴ and each time he answered “No.” Any initial misunderstanding or uncertainty on Kidd’s part was thus resolved by the subsequent questions asked of him and the unequivocality of his responses. Furthermore, defense counsel once again entered only a general objection, without requesting that any further questions be asked. Considering Kidd’s ultimate conclusion that he could not impose the death penalty under any circumstances, see Williams v. Maggio, 679 F.2d at 386; O’Bryan v. Estelle, 714 F.2d at 381-82, we conclude that his excusal did not violate Witherspoon’s standards.

V. Conclusion

The district court correctly concluded in denying the writ of habeas corpus that neither the method of voir dire, the questions asked, nor the exclusion of jurors Woodlief and Kidd violated Witherspoon. The district court also properly denied the writ as to the five additional contentions that McCorquodale raised in his petition: “(1) That his written statement was improperly admitted because (a) his arrest was unlawful and (b) his statement was involuntary; (2) that the trial court’s instruction on intent operated unlawfully to shift the burden of proof from the state to the defendant; (3) that the jury which tried his guilt or innocence was prosecution-prone; (4) that he was erroneously denied a full evi-dentiary hearing on his claims that the Georgia capital punishment statute is applied in an arbitrary and racially discriminatory fashion; (5) that the district attorney’s remark to the sentencing jury regarding appellate review violated petitioner’s due process right to a fundamentally fair trial.... ” McCorquodale v. Balkcom, 705 F.2d at 1555. The panel opinion affirmed the district court’s denial of the writ as to these contentions, which we likewise affirm, reinstating those portions of the panel’s holding not inconsistent with this opinion.

The district court’s denial of the petition for habeas corpus is AFFIRMED.

1 . The facts and circumstances of the homicide are summarized in the Georgia Supreme Court’s opinion, McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974). The Georgia court upon completing review of the case observed that, “In no case we have reviewed has the depravity of the defendant and the torture of the victim exceeded that established by the evidence and testimony of the witnesses in this case.” We will limit our recitation of the facts to those relevant to the issues raised on appeal.

2 . Cf. Goodwin v. Balkcom, 684 F.2d 794, 816 (11th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983) (“Depending upon the comprehensiveness of the [Wither-spoon ] questions addressed to a potential jur- or, it may be possible in some instances for a court to decide that a response other than verbal is unquestionably unambiguous. We leave that question for another case....”).

3 . See discussion in O’Bryan v. Estelle, 714 F.2d 365, 371-73 (5th Cir.1983).

4 . Questions that have been held inadequate for gauging the unequivocality of a juror’s response are those that have inquired only as to the “conscientious scruples” of the juror or asked whether the death penalty might “affect” his deliberations, without making the ultimate inquiry of whether the juror’s views are so strong that they would preclude him from following his oath. See, Adams v. Texas, 448 U.S. at 49, 100 S.Ct. at 2528, (questions as to whether possibility of death penalty would “affect” juror’s deliberations); Segura v. Patterson, 403 U.S. 946, 91 S.Ct. 2280, 29 L.Ed.2d 856 (1971), rev’g without opinion, 402 F.2d 249 (10th Cir.1971); Boulden v. Holman, 394 U.S. 478, 483-84, 89 S.Ct. 1138, 1141-42, 22 L.Ed.2d 433 (1969) (COURT: “Do you have a fixed opinion against capital punishment?”); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970) (jurors asked whether they had “conscientious scruples” against death penalty); Witt v. Wainwright, 714 F.2d 1069 (11th Cir.1983) (question as to whether death penalty would “interfere” with juror’s deliberations); Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981) (QUESTION: “You just don’t feel like you would be entitled to take another person’s life ... ?”); Burns v. Estelle, 626 F.2d 396 (5th Cir.1980) (en banc) (question as to whether death penalty would “affect” juror’s deliberations).

The questions asked in this case did not contain ambiguous language that would render them invalid under the above line of cases. The petitioner argues that the use of the word “prevent” in the questions was ambiguous. We note, however, that the word “prevent” was a word chosen by the Witherspoon Court to be used in the second question, to be asked. 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. Furthermore, as “prevent” is used within the context of the questions posed, it conveys the proper meaning that the juror must find that he could not impose the death penalty or deliberate impartially on the defendant’s guilt.

5 . The dissent states that Georgia law, OCGA 15-12-164, prohibits defense counsel from individually questioning prospective jurors after the statutory Witherspoon question is asked pursuant to OCGA 15-12-164(a)(4), because, if the juror’s answer is affirmative, he is automatically excused for cause. Infra, dissent at 1504-1505, citing Arnold v. State, 236 Ga. 534, 224 S.E.2d 386, 390 (1976) and Jordan v. State, 247 Ga. 328, 276 S.E.2d 224, 234 (1981).

Jordan and Arnold, however, stand only for the proposition that general individual voir dire (preliminary to peremptory challenges) is not allowed at the OCGA 15-12-164 voir dire stage (excusal for cause). The statute does not forbid additional questioning based upon answers to the statutory questions, and the case law interpreting the statute holds that although additional examination is not a matter of right, the trial judge has the discretion to allow further inquiry. Ford v. State, 202 Ga. 599, 44 S.E.2d 263, 265 (1947) (interpreting GA.CODE 59-806, predecessor of OCGA 15-12-164); Hall v. State, 64 Ga.App. 644, 13 S.E.2d 868, 869 (1941) (scope of inquiry based on statutory questions concerning juror’s competency within judge’s discretion). See also Goodwin v. Balkcom, 684 F.2d at 816 (defense counsel in Georgia capital case erred because he could have, but did not, question a juror that judge erroneously concluded had stated she was unequivocally opposed to the death penalty).

Furthermore, a view of Georgia cases reveals that defense counsel frequently participate in the Witherspoon questioning of jurors. See Mincey v. State, 251 Ga. 255, 304 S.E.2d 882, 889-90 (1983); Castell v. State, 250 Ga. 776, 301 S.E.2d 234, 244-46 (1983); Allen v. State, 248 Ga. 676, 286 S.E.2d 3 (1982); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530, 535-36 (1981) (defense counsel’s further questioning of juror on Witherspoon issue allowed, but not questions outside scope of Witherspoon’s holding). Cf. Mincey, supra 304 S.E.2d at 890 (defense counsel allowed to question juror further as to OCGA 15-12-164 question concerning juror’s ability to be fair and impartial). Thus, although defense counsel does not have an absolute right under Georgia law to ask or request questions beyond the basic Witherspoon inquiry of OCGA 15-12-164, if defense counsel makes a nonfrivolous, specific objection to the dismissal of a juror because of ambiguity, and his request for further questioning is denied, such denial would fall within the ambit of Burns, supra,- as the reviewing court would have to speculate about the juror’s response to a crucial question.

6 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent decisions of the former Fifth Circuit decided prior to October 1, 1981.

7 . See, e.g., the exchange between the trial judge and juror Pfeffer in O’Bryan v. Estelle, 714 F.2d at 378-81.

8 . The panel opinion discussed a line of pre-trial publicity cases in deciding whether individual voir dire is required in the Witherspoon context. McCorquodale v. Balkcom, 705 F.2d at 1558-59, 1563-64. To the extent that these cases are relevant, they fail to support petitioner’s position. They commit the method of voir dire examination to the trial court’s discretion within the limits of due process, including whether voir dire should be conducted collectively or individually. United States v. Gerald, 624 F.2d 1291, 1296 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). The key factors to be examined are whether the court utilized an effective means of eliciting answers, United States v. Davis, 583 F.2d 190, 196-98 (5th Cir.1978), whether the crucial questions were asked, id. at 197-98, and whether the defendant failed to specifically object to the voir dire method or request individual questioning. United States v. Gerald, 624 F.2d at 1297-98. As our earlier discussion makes evident, we find all these factors to be satisfied in this case.

9 . Verbal responses do not of course guarantee that an answer will be unmistakably clear. The clarity of a verbal response may turn on the individual’s tone or expression. Likewise, certain non-verbal responses may be more susceptible to ambiguity than others. A nod of the head, for example, is more susceptible to misinterpretation than requiring a person to stand up or step forward.

10 . The Witherspoon court noted that “[t]he critical question, of course, is not how the phrase is employed in this area or been construed by the courts and commentators. What matters is how they might be understood or misunderstood — by prospective jurors.” 391 U.S. at 515 n. 9, 88 S.Ct. at 1773 n. 9.

11 . Juror Woodlief, therefore, does not pose the same problems that were addressed by the court in Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981), cert. denied, 455 U.S. 1003, 1007, 102 S.Ct. 1636, 1644, 71 L.Ed.2d 870, 875 (1982). In Granviel, the questions that were posed were ambiguous and the venireperson in answering indicated confusion and lack of understanding. In contrast, the questions here, as noted above, were clear and precisely stated. Woodlief stated that she understood the questions, and her answers indicate that she did indeed understand what was being asked of her.

12 . See cases discussed supra note 4.

13 . For example, in Boulden v. Holman, 394 U.S. 478, 483, 89 S.Ct. 1138, 1141, 22 L.Ed.2d 433 (1969), several jurors had been excused for simply stating they did not “believe” in capital punishment without stating that they could not themselves impose it. Similarly, in Hance v. Zant, 696 F.2d 940, 954-56 (11th Cir.1983), one juror was excused based on replies such as “As I said before, I believe there are circumstances where the death penalty is warranted, I do not believe that I could vote for it.” The excused juror was thus giving contradictory answers indicating confusion, but neither the trial court nor counsel clarified the juror’s position. Ambiguous or confusing answers are, of course, often due to inadequate Wither-spoon questions. See supra notes 4 & 10.

14 . The voir dire of Mr. Kidd demonstrates the problems when questions are posed in the negative. Although examined out of context, Kidd’s “no” answers to a negative question arguably might indicate that he actually could impose the death penalty, a review of the entire exchange between the court and Kidd demonstrates that he was actually stating that he could not vote for the death penalty under any circumstances. This conclusion is further evidenced by the fact that neither the trial judge nor counsel indicated that they understood Mr. Kidd to be saying that he could impose the death penalty.