Russell v. State

CLINTON, Judge,

dissenting.

Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968) is founded on the guarantee of an impartial jury prescribed by the Sixth Amendment as applied to the states by the Fourteenth Amendment. 1 By its very terms the rule enunciated in Witherspoon applies to what in the federal system of criminal justice is called sentencing. 2 If confirmation of this verity is needed, Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978) provides it. 3 That which is called sentencing by the Supreme Court we know as assessment of punishment. Since in a capital murder case the jury no longer assesses punishment, the Witherspoon holding does not now come into play. Hovila v. State, 532 S.W.2d 293 , *256 296 4 (Tex.Cr.App.1976) (Odom, J., dissenting). In short, whether a venireperson is scrupled against imposition of the death penalty is not germane to service as a juror in the sense of being disqualified for cause. 5

I have come to that conclusion well aware that this Court has diagnosed Witherspoon “alive and well” in, e. g., Brock v. State, 556 S.W.2d 309, 312 (Tex.Cr.App.1977) and, indeed, permits disqualification of a prospective j’uror “under either said § 12.31(b) or Witherspoon or both,” id. at 313, Bodde v. State, 568 S.W.2d 344, 348 (Tex.Cr.App.1978), Moore v. State, 542 S.W.2d 664, 672 (Tex.Cr.App.1976). The examination that bases the diagnosis is always said to have been made in Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1976); see Brock and Moore, supra.

The whole of that examination is revealed by Hovila, supra at 294 , to have been as follows:

“While the new statutes provide that the jury shall take an oath that they will not let the penalty involved affect their deliberations and requires them only to answer questions while the judge actually assesses the punishment based on such answers, the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury’s answers would not be affected by their attitude toward the death penalty as a punishment for crime simply because they will not bring forth the ultimate verdict would be to disregard the obvious. We will not engage in such tenuous reasoning.

We hold, therefore, that the Wither-spoon test remains the same.”

The stated rationale of Hovila is less than satisfactory for me. Its core premise is that, knowing that punishment is either death or confinement for life, jurors obviously will allow their attitude about capital punishment to color their fact finding. The conclusion drawn from that premise is veni-repersons must be measured by the Wither-spoon standard. I must say, first off, that perceiving every prospective juror as some sort of rogue is not all that obvious to me. 6 But, be that as it may, the truly operative notion is that a juror, individually or collectively with others, is so likely to corrupt his duty through personal bias that close examination of deeply held scruples is necessarily appropriate to expose the prospective fraud. Even if experience has produced an occasional juror so eager to serve as to resort to misrepresentation, it occurs to me that all conceivable questioning will not discover the ploy. In any event, certainty that jurors’ answers to issues will be affected by their attitude toward the death penalty is an essential element of the Hovila formulation in order to equate the special issue juror with the death verdict juror. Therein is the fallacy of Hovila , in my judgment.

The mental exercises of jurors who must give factual answers to penetrating questions are significantly different from the thoughts of jurors who are called on to write a verdict of death or life imprisonment. The former work with fellow jurors under constraints of a process of reasoning and deduction from evidence, whereas the death or life verdict is much more a matter of unfettered discretion. Indeed, it was the latter characteristic which was recognized and identified as the fatal flaw that rendered the former capital punishment stat *257 utes unconstitutional in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972); as the Supreme Court later described it in Gregg v. Georgia, 428 U.S. 153, 188, 189 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859 (1976), “Furman held that (the death penalty) could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner,” and “mandates that where discretion is afforded a sentencing body on a matter so grave . . ., that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” On the other hand, a post Furman capital punishment statute meets its concerns when a system is created that “provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information,” Gregg, supra, at 195 , 96 S.Ct. at 2935 . 7 Thus, Hovila errs in finding alike that which is designedly distinct — its major premise falls.

However, Hovila did correctly relate the problem to § 12.31(b). The error was solving it with Witherspoon , 8 The objective of Witherspoon is to provide to the accused a larger pool of prospective jurors that is more representative of the community attitude toward infliction of the death penalty — using the converse of its own phrases, to unstack the deck against him and to preempt the hanging jury. Conceding that the results reached in Hovila are consistent with that objective, still it seems to me that the Witherspoon ritual is not suitable to evoke from a venireman a meaningful admission that he will likely shirk or corrupt the duty as a juror that his oath and the law require. 9 For, as the Supreme Court observed in Boulden v. Holman, 394 U.S. 478, 483-484 , 89 S.Ct. 1138, 1141-1142 , 22 L.Ed.2d 433 (1969):

“[I]t is entirely possible that a person who has ‘a fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of the trial judge and to consider fairly the imposition of the death sentence in a particular case.”

The same principle is, I believe, applicable to a Texas juror who is called on to answer from the evidence the two or three special issues submitted under Article 37.071, V.A. C.C.P.

Where the jury is not the assessor of punishment in a capital case but is charged with finding facts upon which that assessment is made, the Witherspoon holding gives way to another doctrine for testing the qualification of veniremen that Witherspoon, supra, at 523, n. 21 , 88 S.Ct. at 1777 , took express pains not to preclude. That is, as subsequently developed in Lockett v. Ohio, 438 U.S. 586, 596 , 98 S.Ct. 2954, 2960 (1978):

“Each of the excluded veniremen in this case made it ‘unmistakenly clear’ that they could not be trusted to ‘abide by existing law’ and ‘to follow conscientiously the instructions’ of the trial judge. Boulden v. Holman, 394 U.S. 478, 484 , 89 S.Ct. 1138, 1142 , 22 L.Ed.2d 433 (1969).”

That this doctrine arose from a context of guilt-innocence does not render an adaption of it inappropriate at the punishment stage, for in both the jury is serving as a factfinder rather than exercising discretion in as *258 sessing punishment. Indeed, the oath prescribed by § 12.31(b) is in constitutional trouble precisely because the Court has not insisted that “at the least . the effect be a profound, perhaps an insurmountable, one before the venireman can be disqualified,” Burns v. Estelle, 592 F.2d 1297, 1301 (5 Cir. 1979), overturning Burns v. State, 556 S.W.2d 270 , 276 10 (Tex.Cr.App.1977), rehearing en banc heard January 8, 1980; Adams v. Texas, cert. granted, 444 U.S. 990 , 100 S.Ct. 519 , 62 L.Ed.2d 419 , December 10, 1979, 11 to review Adams v. State, 577 S.W.2d 717, 728 (Tex.Cr.App.1979), rather than merely affirm that his deliberations on the punishment would be affected by the mandatory penalty of death or life imprisonment, 12 as in, e. g., Whitmore v. State, 570 S.W.2d 889, 893 (Tex.Cr.App.1976-1978), Freeman v. State, 556 S.W.2d 287, 297-298 (Tex.Cr.App.1977), Shippy v. State, 556 S.W.2d 246, 251 (Tex.Cr.App.1977).

Accordingly, because I am persuaded that the Witherspoon holding, per se, is no longer a viable measure of qualifying jurors in the bifurcated proceedings in a capital ease, in that they do not directly assess punishment, and that a good deal more manifestation than merely acknowledging “the magic phrase” of § 12.31(b) should be required for disqualification, I respectfully dissent.

. Article I, § 10, of the Bill of Rights in the Constitution of Texas is an independent source of the same right. Indeed, refusal of the Mexican Government to secure, on a firm basis, the right of trial by jury was one of the primal grievances expressed in our Declaration of Independence, 3 Vernon’s Texas Constitution 520.

. . . 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 conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected,” Witherspoon, supra, 391 U.S. at 522 , 88 S.Ct. at 1776-1777 . (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

. “In Witherspoon , persons generally opposed to capital punishment had been excluded for cause from the jury that convicted and sentenced the petitioner to death. We did not disturb the conviction but we held that ‘a sentence of death cannot be carried out . . Lockett, supra, 438 U.S. at 596 , 98 S.Ct. at 2960 ; the Supreme Court held that four jurors were properly excluded “assuming arguendo that Witherspoon provides a basis for attacking the conviction as well as the sentence in a capital case,” id. (italics in original).

. “The procedure set out in Article 37.071, supra, is mechanical, and provides for a mandatory death penalty upon an affirmative answer to each of the special fact issues submitted under Section (b). The jury neither imposes nor recommends imposition of the death penalty under this statute.”

. Of course, the matter of scruples concerning capital punishment is still a pertinent inquiry for purposes of exercising preemptory challenges.

. As Mr. Justice White so accurately remarked about our revised sentencing procedure in Jurek v. Texas, 428 U.S. 262 at 279 , 96 S.Ct. 2950 at 2959 , 49 L.Ed.2d 929 (1976) (Opinion concurring in the judgment): “The statute does not extend to juries discretionary power to dispense mercy, and it should not be assumed that juries will disobey or nullify their instructions.”

. Moreover, “[w]here the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner,” Gregg, supra, at 195 , 96 S.Ct. at 2935.

. In Livingston v. State, 542 S.W.2d 655, 658 (Tex.Cr.App.1976), and in Moore v. State, 542 S.W.2d 644, 671 (Tex.Cr.App.1976), the first and second cases to cite Hovila , the Court stated that Witherspoon remained viable “in light of the new statutory scheme providing for the imposition of the death penalty;” and in Boulware v. State, 542 S.W.2d 677, 682 (Tex.Cr.App.1976), the third citing of Hovila , the Court put it more directly, saying that Witherspoon “is equally applicable under the procedure set forth in Article 37.071, V.A.C.C.P.”

. Essentially, that lesson was learned in Moore, supra at 672: veniremen arguably qualified under Witherspoon may, nevertheless, disqualify under Section 12.31(b).

. With respect to the venireperson Doss, after she acknowledged simply that the mandatory penalties would “affect” her deliberations on the issues, the State challenged for cause; the lawyer for accused stated to the trial court, “1 think we should ask some further questions about this matter;” the trial court opined, “I don’t know what you could ask;” and prosecutor remarked, “That’s the magic term phrase and she answered it the way you are supposed to.” Her disqualification was approved, Burns, supra, at 278.

. The two questions framed by the Supreme Court itself in granting certiorari are:

1. Is the doctrine of Witherspoon applicable to the bifurcated procedure employed in Texas in capital cases?

2. If so, did exclusion from jury service in present case of prospective jurors pursuant to § 12.31(b) violate the doctrine of Wither-spoon ?

. From the records being reviewed by this Court it also appears that scant attention is being given by the bench and the bar to the disjunctive feature of § 12.31(b) — “mandatory penalty of death or imprisonment for life.” The Supreme Court has recognized, but explicitly not passed on, “the ‘penitentiary’ analogue to death-qualification of jurors,” Boulden v. Holman, supra, 394 U.S. at 484, n. 7 , 89 S.Ct. at 1141 .