# Wainwright v. Witt > Supreme Court of the United States · January 21, 1985 · 469 U.S. 412 URL: https://www.frixlaw.com/law-library/cases/9429821 ## Case - **Full name:** Wainwright, Secretary, Florida Department of Corrections v. Witt - **Court:** Supreme Court of the United States - **Decided:** January 21, 1985 - **Citations:** 469 U.S. 412; 53 U.S.L.W. 4108; 105 S. Ct. 844; 83 L. Ed. 2d 841; 1985 U.S. LEXIS 43 - **Precedential status:** Published - **Opinion:** Concurrence by Stevens - **Judges:** Rehnquist, Burger, White, Blackmun, Powell, O'Connor, Stevens, Brennan, Marshall - **Cited by:** 3,194 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9429821 ## How later opinions describe it (automated extraction) - recognizing that the “proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment . . . is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accor… - holding that a potential juror is not challengeable for cause on the basis of scruples against the death penalty unless her views would prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath - holding that a venireman may be excused for caused based on his or her views on capital punishment if such views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath” - holding that "the State may exclude from capital sentencing juries that `class' of veniremen whose views would prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths" - holding that death qualification of juries does not violate the Utah Constitution ## Opinion text *436 Justice Stevens, concurring in the judgment. Because the Court’s opinion contains so much discussion that is unnecessary to the resolution of this case, I am unable to join it. 1 Much of that discussion is inconsistent with the standard announced in Adams v. Texas, 448 U. S. 38 (1980), which the entire Court continues to endorse today. 2 The majority, however, does identify the facts that are critical to a proper disposition of this case. 3 *437 Defense counsel did not object to the exclusion of venireman Colby and made no attempt, either by cross-examination or in colloquy with the court, to demonstrate that she could properly serve as a juror, or that defendant wanted her to serve. The entire examination of Colby, who was the first prospective juror to be specifically questioned about her views on the death penalty, consists of the few lines quoted by the Court. Ante, at 415-416. The contrast between defense counsel’s silence when Colby was excused, and his reaction to the prosecutor’s motion to excuse venireman Kazmierczak is illuminating. After answering several questions of the prosecutor, juror Kazmierczak stated: “I don’t think [my views on the death penalty] would interfere with the guilt or innocence of the person, but the decision of what guilt and what the outcome would be for his destiny, I could not go along with the death penalty.” Tr. 273. When the prosecutor later moved to excuse her for cause, defense counsel objected, further questioning ensued, and when the trial court expressed concern “that you have a state of mind that might make you unable to follow the law of this State,” Kazmierczak unequivocally responded: “I could not bring back a death penalty.” Id., at 341. The record thus demonstrates that defense counsel wanted Kazmierczak to serve as a juror, but that she was properly excused. Defense counsel’s objection to the excusing of Kazmier-czak, notwithstanding her stronger testimony indicating bias, lends credence to the hypothesis that competent trial counsel could well have made a deliberate decision not to object to the exclusion of Colby because he did not want her *438 to serve as a juror. 4 Given the gruesome facts of this case, see ante, at 414, and Colby’s somewhat timorous responses, it is entirely possible that her appearance and demeanor persuaded trial counsel that he would prefer a more vigorous or less reluctant juror. 5 In view of that possibility, I am unable to conclude that the State’s failure to make the kind of record required by Adams v. Texas constitutes an error so fundamental that it infects the validity of the death sentence in this case. 6 Accordingly, I concur in the Court’s judgment. 7 I do agree with the Court’s observation that dictum is not binding in future cases. See ante, at 422. The Court, ante, at 423, expressly endorses the following statement in the Adams opinion: “As an initial matter, it is clear beyond a peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State’s power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot be carried out.” 448 U. S., at 47-48 . Justice Brennan, in his dissent today, also endorses that standard. See post, at 450 (Brennan, J., joined by Marshall, J., dissenting). “Defense counsel did not object or attempt rehabilitation.” Ante, at 416. “In this regard it is noteworthy that in this case the court was given no reason to think that elaboration was necessary; defense counsel did not see fit to object to juror Colby’s recusal, or to attempt rehabilitation.” Ante, at 430-431. “Nevertheless, counsel's failure to speak in a situation later claimed to be so rife with ambiguity as to constitute constitutional error is a circumstance we feel justified in considering when assessing respondent’s claims. We note that since Witt was decided by the Florida Supreme Court that court has enforced a contemporaneous-objection rule when dealing with Witherspoon [v. Illinois, 391 U. S. 510 (1968),] challenges. See Brown v. State, 381 So. 2d 690, 693-694 (Fla. 1980).” Ante, at 431, n. 11. “We note in addition that respondent’s counsel chose not to question Colby himself, or to object to the trial court’s excusing her for cause. This *437 questioning might have resolved any perceived ambiguities in the questions; its absence is all the more conspicuous because counsel did object to the trial court’s excusing other veniremen later on during the voir dire.” Ante, at 434-435. As I have previously suggested, the absence of an objection at trial sheds important light on the significance of an alleged constitutional error even when it does not create an absolute procedural bar to review. Engle v. Isaac, 456 U. S. 107, 136, n. 1 (1982) (Stevens, J., concurring in part and dissenting in part) (“The failure to object generally indicates that defense counsel felt that the trial error was not critical to his client’s case; presumably, therefore, the error did not render the trial fundamentally unfair”); Wainwright v. Sykes, 433 U. S. 72, 96 (1977) (Stevens J., concurring) (“The record persuades me that competent trial counsel could well have made a deliberate decision not to object to the admission of the respondent’s in-custody statement”). Earlier in the voir dire, Colby had been repeatedly admonished to speak louder, Tr. 237-238, and her demeanor in answering several of the prosecutor’s questions may have indicated to counsel that it would be inconvenient for her to serve on the jury: “Well, it will cause me to lose my work. This is all. ... I have made plans — of course, this is a [holiday] as far as the post office is concerned — so I was off today.” Id., at 238. She added that she could make arrangements to serve on the jury, “if I have to.” Id., at 239. See Rose v. Lundy, 455 U. S. 509, 544-545 (1982) (Stevens, J., dissenting). I should note that the defense counsel also did not object to the exclusion of either venireman Gehm or Miller. When Gehm was asked whether he could keep an open mind as to whether to vote for the death penalty or life, he responded: “No, I could not.” Tr. 296. The most relevant portion of Miller’s examination reads as follows: “[Q]: And you wouldn’t be able to follow the law as instructed by the Court? “[A]: When it comes down to a death penalty, I wouldn’t. “[Q]: You could not do it. Okay. Regardless of the law? “[A]: No, sir.” Id, at 356. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9429821. Public record. Not legal advice.