On petition for writ of certiorari to the Court of Criminal
Appeals of Texas.
The petition for writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the
Eighth
Page 464 U.S.
904 , 905
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950 (1976), I would vacate the death sentence in
this case.
Justice MARSHALL, dissenting from denial of certiorari.
Adhering to my view that the death penalty is under all
circumstances cruel and unusual punishment forbidden by the Eighth
and Fourteenth Amendments, I would vacate the judgment of the Texas
Court of Criminal Appeals insofar as it left undisturbed the death
sentence imposed in this case. Gregg v. Georgia,
428 U.S.
153, 231, 2973d 859 (1976) (MARSHALL, J., dissenting). However,
even if I believed that the death penalty could be imposed under
certain circumstances, I would grant certiorari and vacate the
death sentence imposed here because the holding below is
inconsistent with this Court's decision in Witherspoon v. Illinois,
391 U.S. 510
(1968).
In Witherspoon v. Illinois, this Court held that in a case in
which the state seeks the death penalty, members of the venire
cannot be excluded for cause simply because they voice general
objections to the death penalty or express moral or religious
scruples against its infliction. The only members of the venire who
can properly be excluded for cause based upon their attitude toward
the death penalty are those who make "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." Id., at 522, n.
21, 88 S. Ct., at 1777 n. 21 (emphasis in original). This Court has
noted that the logic of Witherspoon would invalidate the exclusion
for cause of members of a venire who indicate that there are some
kinds of cases in which they would refuse to recommend capital
punishment. Ibid. This Court has also noted that the logic of
Witherspoon would invalidate the exclusion for cause of prospective
jurors in the penalty phase of a capital trial simply because such
jurors aver frankly that while they will honestly find facts and
answer interrogatories based on their findings, the prospect of the
death penalty may affect their honest judgment of the facts or what
they may deem to be a reasonable doubt. Adams v. Texas,
448 U.S.
38, 50, 100 S. Ct. 2521, 2529 (1979).
At petitioner's trial, the judge excluded several members of the
venire on the ground that their opposition to the death penalty
Page 464 U.S.
904 , 906
was so irrevocable, automatic and unbending that they could
properly be excused under the Witherspoon standard. The record
indicates, however, that the trial court and the Texas Court of
Criminal Appeals which affirmed the trial court's imposition of the
death penalty committed clear error in the application of the
Witherspoon standard.
The Texas Court of Criminal Appeals justified the exclusion of
one prospective juror by reference to a single exchange between
this juror and the prosecuting attorney:
"Q. Is this feeling on your part so firm that you would
automatically vote against the death penalty, regardless of what
the facts of the case might be?
"A. Yes, sir." Banks v. State,
643
S.W.2d 129, 133 (Tex.Crim. App.1982).
This one exchange, however, is part of a complicated colloquy
the ambiguous character of which is hidden by the Texas court's
selective quotation. Certain responses of the potential juror in
question indicate that she was apprehensive about the prospect of
serving on a jury in a capital case and was, in general, strongly
opposed to capital punishment. Other responses indicate, however,
that this juror was not so unalterably opposed to the death penalty
that she would either automatically vote against the imposition of
capital punishment without regard to the evidence developed at
trial or allow her general attitude toward the death penalty to
prevent her from making an impartial decision as to the defendant's
guilt.* For example, the excluded member of the
Page 464 U.S.
904 , 907
venire stated the following in a colloquy with the petitioner's
attorney:
"Q. [L]et me ask you if selected as a juror, would you follow
the court's instructions and answer the questions from the evidence
that you heard?
"A. I sure would, to the best of my ability.
"Q. All right, and then you would let the law take its course.
Then the Judge and his job come into play after you answer
questions. Would you do that.
"A. Right; I sure would.
"Q. All right, and regardless of the death penalty or life
sentence, you would answer-you would follow the Judge's
instructions to you, would you not?
"A. Well, I would feel like I had to, you know.
"Q. All right, and you would answer any questions asked of you
from the evidence that you heard in this trial. Would you do
that?
"A. Yes, sir.
"Q. I submit, Your Honor, she is qualified." Pet. for Cert.,
exhibit B, at 498-499.
Indeed, the question and answer sequence immediately prior to
this potential juror's exclusion by the trial judge shows that she
expressed a positive conviction that she was willing to set aside
her personal antipathy toward capital punishment and find facts
solely on the basis of evidence presented at trial.
"Q. Mrs. Rogers, being a conscien[t]ious citizen of our county,
you would, if chosen as a juror in this case or any case follow the
Judge's instructions, and you would answer any questions that the
Judge gives you from the evidence that you heard in the courtroom,
wouldn't you?
"A. I certainly would." Id., at 507.
These statements clearly indicate that the trial court plainly
erred in excluding this potential juror. If a member of the venire
is mistakenly exluded, any subsequently imposed death sentence
Page 464 U.S.
904 , 908
cannot be allowed to stand. See, e.g., Davis v. Georgia,
429 U.S. 122
(1976) (per curiam ). This Court should review this case in order
to enforce the standards established by Witherspoon and Adams. I
therefore dissent from the denial of certiorari.
Footnotes
[
Footnote *] Under Texas law, upon a
finding that a defendant is guilty of a capital offense, the court
conducts a separate sentencing procedure to determine whether the
defendant shall be sentenced to death or to life imprisonment. At
this proceeding, the state and the defendant are permitted to
present evidence in support of arguments for and against a sentence
of death. At the conclusion of these presentations, the court
submits to the jury three questions: (1) whether the conduct of the
defendant that caused the death of the deceased was committed
deliberately and with the reasonable expectation that the death of
the deceased or another would result; (2) whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased. If the jury finds that the
state has proved beyond a reasonable doubt that the answer to each
of the three questions is yes, the court imposes the death
sentence. If the jury finds that the answer to any question is no,
the court imposes a sentence of life imprisonment. See Tex.Code
Crim.Proc.Ann., Art. 37.071 ( Vernon 1981 and Supp.1982).
Comments
Be the first to comment
Leave a Comment