Davis v. State

BRETT, Justice,

concurs in part and dissents in part:

While I agree that the conviction for Murder in the First Degree should be affirmed, I cannot concur with the majority that the death sentence should be affirmed because I believe that Jurors Metivier and Musgrave were excused in violation of Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968).

When the court asked Juror Metivier the question ending, “... [A]re your reservations about the [djeath [pjenalty?” She answered, “No.” 1 A negative response to that question must be interpreted to mean, “No, my reservations are not such that I would not inflict the death penalty.” However, the trial judge, attempting to clarify the confusing question, asked it more simply and she indicated that she would not inflict the death penalty.

At this point, Juror Metivier had given two answers in direct conflict. Then the defense attorney asked her if she was saying that she would automatically refuse to impose the death penalty, and she replied, “No, I’m not.” The court repeated its second question, and her reply reflected her beliefs when she said, “I just don’t believe in taking one’s life...” It did not reflect her willingness to consider death as a punishment.

The Supreme Court has held that a sentence of death cannot be upheld if potential jurors are excluded from the panel imposing that punishment on the basis of their personal beliefs about the death penalty. Witherspoon, supra. The only legitimate concern upon voir dire of the jury panel is whether they will consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment.

With this in mind, the trial court’s standard first question is not pertinent. The second question is confusing to read, and it must be even more confusing to hear. Given that, and Juror Metivier’s response to the defense attorney’s question, the excusal for cause of this juror was error.

I also believe that the majority’s analysis of the voir dire of Juror Musgrave is clearly erroneous. First, Juror Musgrave indicated that she believed that she could agree to the death penalty without doing violence to her conscience. The court demanded a more positive answer and she said that she didn’t believe she could agree to the death penalty without its having an effect on her conscience. Then the court asked her his standard, “Would your reservations prevent you from voting for the death penalty?” question. She said, “No,” followed by, “No. I don’t think I would.” The defense attorney *1205 then asked if that meant she could possibly impose the death penalty in a particular case, and she said, “Yes. That is right.” Finally, the court asked her his standard, “Could you agree to a verdict imposing the death penalty without doing violence to your conscience?” question, and she answered, “No.” 2 As I have already said, whether it would do violence to her conscience is not the issue. This voir dire is replete with confusion, and the only two things that are clear are as follows: It would affect her conscience. And this would not prevent her from considering the death penalty under the appropriate circumstances.

The exclusion of Juror Musgrave was error.

For these reasons, I believe that the sentence should be modified to imprisonment for life.

. Confusion apparently stems from the use by the court of a question couched in negative language.

. The crucial determination is whether the jur- or would conscientiously consider the death penalty as one of the punishment alternatives, not whether it would affect her conscience.