affirming trial court’s rejection of *1232 defendant’s plea agreement that took death penalty off the table, concluding the court is not just concerned with the defendant’s voluntariness, but it “must also protect the interests of other members of our society in living in a peaceful, orderly atmosphere where an individual does not have to live in fear of being shot while shoveling snow in his own driveway”
How later courts described this case
- affirming trial court’s rejection of *1232 defendant’s plea agreement that took death penalty off the table, concluding the court is not just concerned with the defendant’s voluntariness, but it “must also protect the interests of other members of our society in living in a peaceful, orderly atmosphere where an individual does not have to live in fear of being shot while shoveling snow in his own driveway”
- affirming trial court’s rejection of defendant’s plea agreement that took death penalty off the table, concluding the court is not just concerned with the defendant’s voluntariness, but it “must also protect the interests of other members of our society in living in a peaceful, orderly atmosphere where an individual does not have to live in fear of being shot while shoveling snow in his own driveway”
- “In criminal cases, the court must protect a defendant from the power of coercion and abuse of the state . . . .”
- When the juror’s answers are equivocal it is the duty of the trial court to pursue the matter further until it is established whether the juror is “irrevocably committed” to vote against the death penalty.
Written by the judges who cited it.
The opinion
PRENTICE, Justice,
concurring and dissenting.
I concur in the majority opinion upon issues 1, 3, 4, 5, 6 and 7 but dissent with respect to issue 2. I, therefore, vote to affirm the conviction of the defendant (appellant) upon the crimes charged but would order the sentence of death vacated and order a new trial upon that issue.
Upon Issue 2, the majority has determined that the trial court did not err in excusing, for cause, five prospective jurors who expressed themselves as being firmly opposed to the imposition of death sentences. The majority said:
"The record shows that the trial court fulfilled the duties imposed upon her by Witherspoon, and the totality of the questioning shows that it would be flying in the face of common sense to say that any of these jurors was not irrevocably committed to vote against the death penalty. We find no error here." (Majority op. at pp. 168-169)
*177 In this respect, the majority has misconstrued, and consequently misapplied the holding of Witherspoon v. Illinois, (1968) 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 .
If any one prospective juror was improperly excused upon the basis of his or her feelings about capital punishment, the death sentence must be vacated. Davis v. Georgia, (1976) 429 U.S. 122 , 97 S.Ot. 399, 50 L.Ed.2d 839 (per curiam). A correct review of the law and the record reveals that all five excused prospective jurors assigned as error were excused improperly. Consequently, the sentence of death in this case cannot stand.
We must first establish the parameters of Witherspoon.
In Adams v. Texas, (1979) 448 U.S. 38 , 100 S.Ct. 2521 , 65 LEd.2d 581 the Court summarized its prior cases in this area:
"As an initial matter, it is clear beyond 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." Id. at 47-48 , 100 S.Ct. at 2528 , 65 L.Ed.2d at 591 .
"This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. at 45 , 100 S.Ct. at 2526 , 65 L.Ed.2d at 589 .
Thus it may be seen that a proper analysis of a Witherspoon claim should begin with a determination of the duties of the jurors and the instructions appropriate thereto. The duty of the jury in the sentence hearing phase of a death penalty case is to consider the evidence and (1) determine whether or not the State has proved beyond a reasonable doubt that at least one of the statutorily prescribed aggravating circumstances existed, (2) determine whether or not mitigating circumstances that exist, if any, are outweighed by the aggravating circumstance or circumstances and (8) recommend to the court whether or not the death penalty should be imposed. Ind.Code § 35-50-2-9(e). There is no requirement for the jury to recommend a death sentence under any circumstances. This is obvious from the clear wording of sub-section (e): "The jury may recommend the death penalty only if it finds: * * *." {emphasis added) and is further evidenced by sub-section (e)(7) which authorizes the jury to consider, in the penalty determination phase, "Any other cireumstances appropriate for consideration.", as a mitigating circumstance. (emphasis added). In Hoskins v. State, (1982) Ind., 441 N.E.2d 419, 430 (Prentice, J., Hunter, J., dissenting), I made the following observation about this statutory scheme:
"Additionally, the wording of the Indiana Statute, Ind.Code § 35-50-2-9(e) (Burns 1979) does not appear to bind the conscience of the jurors but provides only that the jury may recommend the death penalty under certain prescribed circumstances. It is not altogether illogical to conclude, therefore, that although a juror finds facts warranting the death penalty and no mitigating circumstances whatsoever, he may, nevertheless, recommend against imposing it without violating his oath." (emphasis in original).
Under the statute and our case law, a juror who is unalterably opposed to capital punishment could, nevertheless, abide by his oath, because there is no duty imposed upon him to recommend a penalty of death under any circumstances. This conclusion is inescapable from the use of the word "may" in the standard to be applied provided by subsection (e), from the authorization to consider the all encompassing "any other circumstances appropriate for consideration" provided by subsection (c)(7) and from the relegation of the jury's recommendation to an advisory status only recently approved by this Court in Schiro v. State, (1983) Ind., 451 N.E.2d 1047 . There is simply nothing *178 to bind the conscience of jurors with respect to the death penalty potential, and one who holds conscientious seruples against such penalties is under our statute and case law, no more disqualified to serve in a capital case than he would be in a non-capital case.
It must also be noted that none of the five prospective jurors who were excused for cause relative to this issue was asked if his viewpoint on the death penalty would affect his capabilities to consider the evidence and the instructions of the court and to determine defendant's guilt in accordance with the evidence and the law.
Further, none of such prospective jurors was even asked if, despite his opposition to the death penalty, he would hear the evidence and vote for a recommendation authorized by the evidence and the statutory standards; and none was told that whatever the recommendation of the jury, it was not binding upon the court. Consequently, each of the five provided answers to questions that were largely irrelevant under mistaken impressions, engendered by the trial court's and the prosecutor's questions, concerning the nature of the death penalty statute and the jurors' obligations thereunder. The trial court's error is accented by a consideration of the instruction she subsequently gave. This instruction, though by no means perfect, does parallel the statutory provision:
"If after a consideration of all the evidence herein, you and each of you are convinced thereby beyond a reasonable doubt that defendant Michael Daniels on January 16, 1978, did intentionally kill Major Allan H. Street with a handgun while defendant was committing the crime of robbery and if you are further convinced by the evidence beyond a reasonable doubt that any mitigating circumstances that existed are outweighed by the foregoing aggravating circumstances, the form of your recommendation may be: 'We, the jury, recommend the defendant Michael Daniels shall suffer the death penalty as provided by law.' * * *." R. at 802.
It does not, however, as evidenced by the record, parallel the questions posed to the prospective jurors.
Prospective juror Sparks, who perhaps was the most adamant in his expressed opposition to the death penalty, asked "- what is the duty of a jurist?" The judge's statement and question that followed the inquiry was not responsible:
"Q. Mr. Sparks, you have stated that you were opposed to the death penalty. If the Court should instruct you in the event that you were a member of the jury and in the event that there was a finding of guilty of the Defendant as to the charge of murder, if the Court further instructed you that the law provides that in the event the State of Indiana proves beyond a reasonable doubt one of the aggravating cireumstances, and it-the proof outweighs any mitigating circumstances that may be proven, do you have such a conscientious opinion or feeling against the death penalty that you could not follow the Court's instructions and you could not, in fact, bring in a recommendation for the death penalty?
"A. That's right." R. at 585-86.
Under the statute, the judge's hypothetical is not a correct statement of the law. Even if the juror found that the aggravating circumstance outweighed the mitigating circumstance beyond a reasonable doubt, he could, nevertheless, have recommended mercy and remained faithful to his oath.
The trial court repeated the error with prospective juror Riley but received a different answer:
"Q. Mrs. Riley, are you telling the Court that if you were instructed that if the State of Indiana-if the Defendant had been found guilty and you proceeded to the sentencing part of the trial and if they proved beyond a reasonable doubt and-that you would not be able to follow the instructions of the Court and you would not uphold your oath as a juror?
"A,. Well, I just couldn't vote for the death penalty.
*179 "Q. So you're saying that you would not follow the Court's instructions, is that right?
"A. Well, if that's what it is." 592-98. R. at
A discussion ensued between defense counsel and the court in which counsel asked if the court were going to instruct the jury that it had a vote for the death penalty. The court never answered counsel's question, although the answer should have been an unequivocal "no." The examination of Mrs. Riley continued, and although the court attempted to have Mrs. Riley's position clarified she continued to answer ambiguously; however, it is apparent that she understood exactly what the trial court was telling her:
"Q. You are not-you are telling me that you would not follow the Court's instructions?
"A. I don't understand. This is my first time here as a-at a jury duty, and I don't quite understand. The only thing is when-as I say that I'd have to vote for a death penalty-I couldn't-." R. at 596.
Mrs. Riley could not have known that the only logical inference to be drawn from the court's statement, i.e. that the jurors may be duty bound to vote to impose the death penalty, was incorrect. Subsequently, the Prosecutor, again oblivious to the statutory standard, backed Mrs. Riley into a corner:
"Q. All right. Now, I think what the judge is trying to find out and what I'm trying to find out is that you as a juror are going to take an oath to follow the law, to find the law and the facts as they are. Okay? Not as you want them to be. Our legislature enacted a death penalty. Okay. That said this is a penalty that the State may seek by charging that the Defendant committed a certain aggravating circumstance, and the one which we have alleged is that he intentionally killed someone during the course of a robbery, and the law says that we must prove that beyond a reasonable doubt to you, and that it must outweigh any mitigating circumstances in your mind. Okay? And it's your job as a juror to determine whether or not the State has done that, and if we have done that then it's your job as a juror to vote to recommend a death penalty. If the judge instructs you that that's the law, could you do it?
"A. No, I don't think I could. I don't think I could vote for a death penalty.
"Q. Okay. No matter what the law is and no matter what the judge instructs you?
"A. No, because I'm-the Lord says he's the only one that judges and I couldn't.
"Q. So in essence, you wouldn't be able to follow what the judge told you to do?
"A. Well, no, because I don't think I could-
"Q. -no matter what, you would never vote for a death penalty, no matter what the judge instructed you?
"A. No, I couldn't, because I wouldn't want to have to live with that." R. at 597-98.
The judge excused Riley upon the ground that "she's indicated that she would not follow the Court's instructions under any circumstances." This is not accurate. Mrs. Riley only stated that she would not follow instructions, which if given, would have been patently erroneous.
Prospective juror Harpe did not think he could live with himself and did not think he could recommend the death penalty under any circumstances; however, it is apparent that Harpe thought, erroneously, as the others did, that he might have to recommend the death penalty. Such a state of affairs is not the law and therefore, his answers do not furnish a basis for a challenge for cause.
Prospective juror Hardy eventually expressed opposition to capital punishment except as to cases of a presidential assassination or child molesting. He virtually stated that he would not impose it in this case; however, he too was never properly apprised of his obligation as a juror:
"Q. Okay. And if the judge instructed you regarding the law and the facts in this case and the death penalty, you couldn't follow the judge's instruction, I take it, regarding the death penalty?
*180 "A. No.
"Q. And that being the law in Indiana you just disagree with it, I take it?
"A. I disagree with it.
"Q. You couldn't follow it.
"A. No." R. at 642.
We are left to wonder what law the Prosecutor was discussing; however, it appears from the context, he understood the law to be that which had already been imparted several times, ie. a mandate to recommend the death penalty if the jury found the alleged aggravating cireumstance and that it outweighed such mitigating circumstance, if any, that might be found.
Finally, while prospective juror Raymond stated that he, unalterably, would not recommend the death penalty under any circumstances, it was again done under the erroneous belief that he might be required to do so.
Viewing the record in its totality, I can only conclude that the prospective jurors equivocated because of the imprecise manner in which they were examined. Except in the case of Mrs. Riley, the equivocation miraculously ceased each time the prospective juror realized that, contrary to the statute, mercy might not be a viable and lawful alternative to the imposition of the death penalty.
The burden was upon the State to demonstrate that these five jurors were excused because they would not abide by their oaths. Adams v. Texas, supra. That burden has not been met. Not one of the five excluded jurors ever stated or implied that he or she could not do what would be required of him as a juror in this case. As a result, Defendant was tried by a death qualified jury in violation of his due process rights under the United States Constitution and the Constitution of this State. Accordingly, I vote to set aside the sentence of death and to remand the case for a new sentencing hearing. In all other respects, the judgments of conviction and sentences should be affirmed.