Bean v. State

Collins, C. J.,

concurring in part, dissenting in part:

I disagree with the majority opinion of the court holding that the jury selection violates the standard established in Witherspoon v. Illinois, 391 U.S. 510 (1968). I concur in the remainder of the opinion.

As I read Witherspoon, it stands for the constitutional rule that there may not be wholesale elimination of prospective jurors for cause in a capital case who have voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. That did not happen in this case, and in my judgment gives no cause for modification of the penalty.

The record before us does not reveal exactly how many veniremen were initially summoned for jury selection in this case. The record does reveal, however, that 80 persons were examined as prospective jurors. It is reasonable to assume that substantially more than 80 persons were called because after the jurors and alternates were selected and sworn the judge excused the remaining persons summoned on the venire.

A recapitulation of what happened to those 80 veniremen examined by counsel is as follows:

*95 Veniremen examined.................................................... 80

Excused by State on peremptory challenges............................................... 7

Excused by Defense on peremptory challenges............................................... 5

Excused for cause because of a fixed opinion of guilt................................ 39

Excused by stipulation for reasons other than having a firm or fixed opinion of guilt.............................................. 6

Excused because of objection to capital punishment....................................... 11

Sworn as Jurors........................................ 12

Total............................................ 80

Without further analysis of the 11 veniremen who were excused because of their opinions about the death penalty, it becomes immediately apparent there was no “hanging jury”, nor did the State of Nevada “stack the deck” against appellant in the manner ruled unconstitutional in Witherspoon. Id. at p. 523.

If one examines in detail the voir dire of the 11 persons excused because of their belief about the death penalty, it becomes even more apparent there was no violation of appellant’s rights under the Witherspoon decision. Only two of the 11 jurors excused might be said to have violated the proscription of Witherspoon. They are veniremen Minedew and Bilbrew. The other nine, as I will demonstrate later, were properly excused under the Witherspoon mandate. This is a radically different situation than Witherspoon where, as described by United States Supreme Court, “. . . the trial judge said early in the voir dire, ‘Let’s get these conscientious objectors out of the way without wasting any time on them.’ In rapid succession, 47 veniremen were successfully challenged for cause on the basis of their attitudes toward the death penalty.”

In Witherspoon, the high court said, “The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor does it involve the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.” Id at p. 513.

*96 In the court’s own words, the rule of Witherspoon is, “Specifically, we hold 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 convictions or religious scruples against its infliction.” Id. at pp. 521, 522.

With that test in mind, limited by the high court as it was, an examination of the reasons why 11 veniremen were excluded from the jury in this case because of objection to the death penalty reveals as follows:

1. Mary Elizabeth Brown testified that she could not render a decision which would call for the death penalty.

2. Bessie L. Severns testified she was afraid she could not render a penalty calling for death.

3. Mary E. Adams testified she felt that if convinced that that [death penalty] was a proper verdict in this case, she would be prevented from returning such a verdict.

4. Vincent E. Johnson testified he didn’t think we have the right to vote to take his [appellant’s life] just because he may have taken somebody else’s life.

5. Murial Vernon testified she didn’t believe, in an appropriate case, she would be able to render a verdict imposing the death penalty.

6. Dee A. Edwards testified she didn’t believe in capital punishment. She believes every person should have a chance to reform.

7. John H. Dressier testified he had a conscientious scruple against the death penalty and against imposing the death penalty.

8. Dean R. Wilson testified he felt he could not vote for a verdict which would call for the death penalty.

9. Joseph Ferro testified he felt he could not impose the death penalty in a proper case.

It is arguable under Witherspoon that none of the foregoing nine persons were improperly excused as jurors.

The two who can be said to have been improperly excused pursuant to Witherspoon are:

1. Mickey Minedew testified, “I could return a verdict of guilty if the facts in this case and if the evidence presented on the part of the State was sufficient to satisfy my mind the defendant was guilty.”

2. Rosie L. Bilbrew testified, “I am not for capital punishment.”

The high court said in Witherspoon, “. . .A jury that must choose between life imprisonment and capital punishment can *97 do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death.” Id. at p. 519. That court condemned the actions of the Illinois court in these words, “But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality.” Id. at p. 520.

In examining the voir dire examination of the 12 persons who were selected and sworn as trial jurors in this case, it cannot be said that all prospective jurors who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle were swept from the jury.

Juror No. 5, Linda L. Ayala, testified that she did not have the feeling that because a person may have killed another person he himself should be lolled, and that she did not necessarily believe in the philosophy of an eye for an eye or a tooth for a tooth, but that the circumstances of the case would determine her agreement or disagreement with that philosophy.

Juror No. 7, Janice A. Morris, in response to a question whether she had any conscientious scruples against imposition of the death penalty, answered, “Well, this is a question I have been battling since I came into the courtroom. It is not something that I really knew, whether I did or didn’t. I think, if I felt that I was convinced that this was the penalty, that I could admit it.”

Several other jurors sworn to try the case testified that while they did not have religious or conscientious scruples against the death penalty nor opposed it in principle, they would not inflict it unless in their judgment the facts and circumstances of the case justified it. There can be no doubt in anyone’s mind from the evidence in this case that the circumstances of the killing and mutilation of Sonja McCaskie justified the death penalty.

The United States Supreme Court said in Witherspoon, the jury in a capital case must “express the conscience of the community on lie ultimate question of life or death.” Id. at p. 519. And that, “. . . in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment- — -all who would be reluctant to pronounce the extreme penalty— such a jury can speak only for a distinct and dwindling minority.” Id. at p. 520.

That is not so in Nevada. The death penalty is still authorized by our law, and as recently as the 1969 session of the Nevada State Legislature efforts to outlaw capital punishment *98 were unsuccessful. The majority of Nevada’s people, and the conscience of our communities, permit execution in a proper case.

If Witherspoon stands for the rule that excuse of but one prospective juror for cause simply because he voiced general objection to the death penalty or expressed conscientious or religious scruples against its infliction constitutionally voids the death penalty, then I am wrong in my interpretation of it. I can find no such case from the United States Supreme Court.

Considering this case was tried nearly five full years before the United States Supreme Court decided Witherspoon, remarkable compliance was unknowingly and unwittingly had with that mandate. It simply cannot be said in this case that a Nevada court permitted a “hanging jury” or “stacked the deck” against appellant.