Pierson v. State

614 S.W.2d 102, 1981 Tex. Crim. App. LEXIS 994

• Court: Court of Criminal Appeals of Texas
• Decided: April 29, 1981
• Docket: 63437
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for a capital murder. Punishment is death.

Appellant raises fifteen grounds of error. We deal only with his contentions that two prospective jurors were excused for cause in violation of his right to an impartial jury and due process of law under the Sixth and Fourteenth Amendments. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Because the record reflects that both jurors were improperly excused, we reverse appellant’s conviction.

Prospective juror William Graham initially testified that he was opposed to the death penalty if he personally had to impose the penalty. The prosecutor then explained to Graham that the jury members did not assess the death penalty, but only answered three questions. If the jury answered all three questions “yes,” the trial judge would assess punishment at death; if the jury answered any of the questions “no,” the judge would assess punishment of life imprisonment.¹

The prosecutor then informed Graham that in order to serve as a juror he would have to state under oath that the mandatory penalty of death or imprisonment for life would not affect his deliberation on any issue of fact. See V.T.C.A. Penal Code, § 12.31(b). The prosecutor inquired whether Graham could take the oath knowing that if the jury affirmatively answered the three special issues appellant would be sentenced to death. Graham responded:

A Are these the questions over here?

A Right.

A Can I read them?

Q Sure.

A I don’t see why I would have any difficulty answering those questions yes.

A Well, in other words, you are saying that you can answer them yes knowing that when you returned a yes answer to each of those questions, that mandatorily the Defendant is going to receive the death sentence.

A What I am saying is that if you successfully prove your case, I may very well have no alternative but to answer those questions yes.

A Well, the alternative would come in, do you see, in each of those questions, the yes answer would have to be beyond a reasonable doubt, do you see, from the evidence. Now, jurors will have a great deal of latitude. Sometimes people — because of their own personal feelings or prejudice, bias and interest in what is going to happen, can sway them one way or another, even subconsciously, do you see. That’s where the oath comes in. You are saying that the mandatory sentence of life or death will not affect your deliberations on any finding of fact at all.

Now, if I understood you right when you started, you said you would not return a verdict that would result in a death sentence; is that right?

A I said I would be opposed to such a thing, yes. However, I don’t want to be put in that position. That’s what I said.

A Now, if you feel that way, and you don’t want to be put in that position, there is no one going to force you to take this oath. That’s exactly why I asked you that question.

Now, if you take that oath, now, you are bound by law and oath to God to do exactly what you said you would do. And if you get into a tight situation here, you haven’t heard the evidence—

A Right.

Q But you know full well that a yes answer to each of those three questions is going to result in a death sentence, and you are going to know that it was a direct result of what you personally said and you put yourself in a position where you might be required to do the very thing that you say you don’t want to do. And at that time I am suggesting to you that it might well affect your deliberations to some extent, because of your deep-seeded [sic] personal feelings there.

A I understand. That’s why I wouldn’t want to take the oath.

A That’s what I am saying. If you have this feeling at this time, you haven’t even heard any evidence, I am just saying to you I wouldn’t think you would want to take that oath to not even know what kind of situation you are taking yourself in, because you have a strong, apparently a very strong personal feeling against returning a verdict that will result in a death sentence; is that right?

A Well, my reason is strictly selfish. I’m not opposed to death penalty if the crime warrants it. I do not want to be the one that would do it, and then later find that I have made some grievous error.

Q Well, but sure, there are a lot of people that will say I am not opposed to the death penalty if someone else does it.

A Yeah.

Q But that isn’t — we are entitled — we who are representing the people here in Dallas County, State of Texas, all of those twelve persons on that jury that from start to finish will say “If you show it to me I will have no qualms at all about following the law — ”

******

Q (By Mr. Whaley) What I am saying is, we are entitled to twelve jurors that know at the outset that they can do without any question what the oath says, not any question in their mind going in. And I have a feeling from talking to you that yes, you would have a considerable reservation about returning a verdict that you knew was going to result in the death sentence. And that’s going to be with you the rest of your life.

A Well, that’s my feeling. I feel that I would be put in an untenable position, because by the nature of my job, I prosecuted maybe thirty people in the course of my work. I have gone to Grand Juries, arraignments, worked closely with the U.S. Attorneys, and in no instance did I ever have a Defendant that was not guilty. The problem was proving it. So therefore, if you have a good case, and you prove your case, I would have no choice but to answer yes to these questions. And therein lies my problem, because I would be opposed to sending someone to their death.

A That’s exactly what we are talking about, so your choice comes at this moment as to whether or not you would take this oath. If you say you wouldn’t take that oath—

A I won’t take the oath.

On examination by defense counsel, Graham explained why he could not swear that his deliberation on the facts would not be affected by the mandatory penalty of death or life imprisonment:

Well, I am saying that it’s quite obvious if you have always had this in the back of your mind, you are going to take a much harder look at the evidence, and look for more reasonable doubt than you would otherwise....

The state challenged Graham on the basis that he could not take the oath required by § 12.31(b), supra. The court sustained the state’s challenge. Referring the court to his pre-trial motions, appellant objected that under the holding of Witherspoon v. Illinois, supra, Graham should not have been excluded. Appellant also objected that the § 12.31(b) oath unfairly restricted the jury’s consideration of the three special issues set forth in Art. 37.071(b), supra. The objection was overruled.

Prospective juror Russell Wayne Massey testified in response to questions by the prosecutor that he did not think the death penalty was an appropriate penalty for crime. Massey further testified that he personally would not vote for the death penalty. Defense counsel explained to Mas-„ sey that under the Texas procedure the jury did not itself impose the death penalty. Counsel then explained the § 12.31(b) oath to Massey. Massey initially stated that he could take the oath, then wavered:

Because I want to answer [the special issues] honestly, of course, and I would like to go by strictly the facts and answer all the facts honestly. And if everything by the facts came to the fact that I have to answer all three questions yes, I don’t know if I want to take that oath.

Massey ultimately took the position that his personal feelings concerning the death penalty would not cause him to distort or disregard the facts of the case:

I would not let my personal feelings get involved to where I would, if I believed all three questions to be yes, I would say no.

* * * * * #

Q (By Mr. Evans [defense counsel]) Assuming you are on a jury in a capital case, I’m going to ask you one more time: If you would let the mandatory penalty of death or imprisonment for life affect your deliberations on any issue of fact in a case.

A If I was on the jury?

Q If, yes.

A Then I would have to put my personal feelings aside and go strictly by the facts, if I was on the jury.

Q And could you and would you do that?

A Well, see now, I’ve never been in that position, I really can’t honestly say, but I think yes, I would go strictly by the facts and go strictly by the rules.

Q Well, what you are telling us is you would rather not be on the jury in the first place.

A Well, if by going strictly by the facts and strictly by the rules and going honestly to it, I could give a man the death sentence, yes, I do not want to be on the jury. I really don’t know what to say.

The state’s challenge for cause due to Massey’s inability to take the § 12.31(b) oath was sustained. Appellant objected that the exclusion of Massey was contrary to the holding of Witherspoon, and that Massey appeared able to put aside his personal feelings and follow the law. The objection was overruled.

The United States Supreme Court held in Witherspoon that “a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” 391 U.S. at 521, 88 S.Ct. at 1776. Specifically, the Court held 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, [footnote omitted]

Id. at 522, 88 S.Ct. at 1777. The Supreme Court subsequently established that the improper exclusion of even one juror requires that the death sentence not be imposed. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 399 (1976).

The Supreme Court recently addressed the question whether the application of § 12.31(b), supra violates the mandate of Witherspoon. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Adams makes it clear that a literal application of the language of § 12.31(b) is unacceptable under Witherspoon. The Court stated:

Based on our own examination of the record, we have concluded that § 12.31(b) was applied in this case to exclude prospective jurors on grounds impermissible under Witherspoon and related cases. As employed here, the touchstone of the inquiry under § 12.31(b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors’ performance of their duties. Such a test could, and did, exclude jurors who stated that they would be “affected” by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be “affected.” But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their hon-ést judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law. [footnotes omitted] [emphasis added]

Id., 100 S.Ct. at 2528-2529.

Under Adams no prospective juror may be excluded simply because he states that his view of the facts or law would be “affected” by the possible infliction of the death penalty. Nor may a prospective jur- or be excluded because the possible infliction of the death penalty would involve him emotionally or cause him to deliberate upon the issues with greater seriousness than he would otherwise. A prospective juror may be excluded consistent with Adams if he indicates that he could not follow the court’s instructions or obey his oath to render á verdict according to the law and evidence. See the underlined portion of the quotation above; see also 100 S.Ct. at 2529. In order to establish a challenge for cause the state must go beyond the statutory language of § 12.31(b) and show that because of the prospective juror’s feelings against the death penalty he would be unable to answer the special issues without engaging in a “conscious distortion” of the facts or law. Id., 100 S.Ct. at 2526. When a juror engages in such conscious distortion, he ignores his instructions concerning the special issues, and violates his oath to render a true verdict according to the law and evidence. See Art. 35.22, V.A.C.C.P.

In the present case both Graham and Massey stated that in spite of their reservations about the death penalty, they could answer the special issues in the affirmative if the state proved its case. It is true that Graham testified he would “take a much harder look at the evidence, and look for more reasonable doubt” than he would otherwise. Adams points out, however, that a prospective juror cannot be excluded because he concedes that the prospect of the death penalty may affect his view of what constitutes a reasonable doubt. See the underlined portion of the quotation above. Under Adams, prospective jurors who take such a serious attitude but who nonetheless state that they can honestly determine the facts and abide by the law may not be excluded from jury service.

Prospective jurors Graham and Massey were excluded from serving on the jury in violation of the holdings in Witherspoon and Adams. Their exclusion from service denied appellant his right to an impartial jury under the Sixth Amendment and due process of law under the Fourteenth Amendment.

Appellant objected to the exclusion of both Graham and Massey. Although the record reflects that the state failed to use five of its 15 peremptory challenges, we do not view this as rendering the error harmless.

First, under the statutory procedure established for capital cases, the prospective jurors in this case were examined and challenged on an individual basis. See Arts. 35.13, 35.17, 35.20, and 35.25, V.A.C.C.P. Had the court been overruling the state’s challenges for cause in a manner consistent with Adams and Witherspoon, we cannot say with any assurance that the state would have exercised a peremptory challenge against either Graham or Massey. The state may well have considered that taking one or both of them was preferable to using peremptory challenges and thereby enhancing the possibility of being forced to accept an even less desirable juror.

Second, there is no showing that the trial court would have allowed the state to exercise its peremptory challenges retroactively. Such action would be manifestly improper under the established procedure for selecting a jury in a capital case. Grijalva v. State, 614 S.W.2d 420 (1980). Prospective jurors in capital cases are examined individually and must be challenged and passed upon separately. Arts. 35.13 and 35.20, supra. Only in non-capital cases do the parties exercise their peremptory challenges after having conducted a voir dire examination of the entire jury panel. Arts. 35.25 and 35.26, V.A.C.C.P.; see Fuller v. State, 409 S.W.2d 866, 869 (Tex.Cr.App.1966). If the state elects to seek the death penalty, it must select the jury in accordance with the procedure established for capital cases. It may not seek to take advantage of the procedures for both capital and ñon-capital cases.

All things considered, it would be pure speculation on our part to hold that the state’s failure to exhaust its peremptory challenges rendered harmless the error in excluding Graham and Massey. We refuse to engage in speculation concerning an issue as significant as the selection of a fair and impartial jury in a capital case where the death penalty is assessed. The error was not harmless.²

The judgment is reversed and the cause remanded.

1 . The questions, generally known as special issues, are set forth in Art. 37.071(b), V.A.C. C.P. as follows:

(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.

2 . We note that the United States Supreme Court has summarily reversed several state decisions, including a decision of this Court, that held error under Witherspoon was harmless or waived. Whan v. Texas, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971), rev’g Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969); Speck v. Illinois, 403 U.S. 946, 91 S.Ct. 2279, 29 L.Ed.2d 855 (1971), rev’g People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968); Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971), rev’g State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969); Bernette v. Illinois, 403 U.S. 947, 91 S.Ct. 2290, 29 L.Ed.2d 858 and Tajra v. Illinois, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 858 (1971), rev’g People v. Bernette, 45 Ill.2d 227, 258 N.E.2d 793 (1970); Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971), rev’g State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968); Childs v. North Carolina, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971), rev’g State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967). Of these cases, Whan, Speck, Wig-glesworth, and Bernette relied in whole or in part on the argument that Witherspoon error was harmless because the state failed to exhaust its peremptory challenges. The Supreme Court’s summary treatment of these cases indicates that the capital defendant’s right to a fair and impartial jury is not readily forfeited.