Eizember v. State

CHAPEL, J.,

Concurring in Part and Dissenting in Part.

11 Eizember claims in Propositions I and II that his trial was tainted when biased Jurors who sat on his jury should have been excused for cause. I agree. The constitution requires an unbiased jury. A juror cannot serve if his "views prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. 1 A capital juror must be able to fairly consider all three punishment options. 2 Biased jurors were allowed to serve on Eiz-embers trial, even though he requested they be removed for cause, and despite clear pretrial statements indicating their biases.

T2 Before voir dire, prospective jurors in Eizember's case filled out extensive questionnaires. Use of juror questionnaires is often thought of as a time-saving measure, allowing the trial court to move swiftly past many standard questions and reducing the court time necessary to pick a jury. This is true, but juror questionnaires serve another, more important, substantive function. During a capital case voir dire, jurors are often asked questions on their feelings about crime, the criminal justice system and the. death penalty. Many jurors have not had occasion to think about these issues, and some jurors are reluctant to answer the questions honestly aloud in public. Questionnaires allow jurors to honestly think about and answer these and other questions related to bias and their ability to consider all the evidence and the punishments in each case. A juror's answer on a questionnaire, given in private and after the leisure to think about the question and answer, is a good indicator of the juror's position on the question. For this reason, juror questionnaires are useful to initially cull from the panel jurors with an obvious bias or inability to discharge the duties of a juror.

{3 Here, juror questionnaires showed a clear bias which made the jurors unfit for service. Rather than simply thank and excuse those jurors, the trial court made the effort to rehabilitate them. I might understand this if the juror pool were severely limited. However, the trial court had other potential jurors available. In a capital case the ability to consider punishment fairly is of the utmost importance. A juror's bias need not be proved with "unmistakable clarity" before he may be excused for cause. 3 When *248 faced with such dubious questionnaire answers, which are reinforced through questioning, why not take these answers as an honest reflection of the jurors' opinions, excuse them, and move on? The majority's opinion focuses on the jurors' answers during voir dire, and concludes that the jurors were sufficiently rehabilitated. As I explain below, I disagree with this analysis. Looking at the whole of voir dire, and taking the questionnaire answers with the voir dire transcript, these jurors consistently exhibited bias which rendered them unfit to serve. 4 However, I am more concerned that we have to engage in that analysis. The reversible juror error in this case could have been avoided by simply believing the potential jurors and excusing them from service. "[All doubts regarding juror impartiality must be resolved in the defendant's favor." 5 The trial court failed to follow this simple maxim, and the majority's conclusion compounds this error.

14 Juror D.B. wrote, "I firmly believe if you take a life you should lose yours." She had no reservations about seeing a guilty person who had taken the life of another put to death. She believed the death penalty kept taxpayers from supporting a criminal for the rest of his life. She was strongly in favor of capital punishment and said it was definitely not used too often in Oklahoma. She said that, were she a defendant, she would not want her on her jury because she would not hesitate to impose the death penalty where guilt was proven. I am at a loss, given these written statements, to understand the majority's conclusion that these questionnaire responses "do not demonstrate an impossible bias towards the death penal-try.” 6

5 I also cannot agree with the majority's conclusion that Juror D.B. was somehow rehabilitated by her answers in voir dire. She stated she could only give meaningful consideration to the punishment of life without parole if the death penalty was not an option. She explained this by asking, if a defendant was imprisoned for life anyway, why not impose the death penalty. She stated she would have to consider all three alternatives, but agreed that she would probably automatically prefer death. She stated that, as a defendant, she would want a juror like herself because she would not want to spend her life in prison without the possibility of parole. This does not appear to be consideration of all three punishments, much less fair or meaningful consideration.

T6 Juror A.S. twice wrote that the death penalty should be carried out on a person convicted of a capital crime. He felt that the death penalty rids society of the expense of housing, feeding and providing lifetime medical care for a prisoner. He noted that he was broadly in favor of capital punishment, that harsher punishment generally was required for the crime problem, that there should be no plea bargains, and that prisoners should serve all the time on an imposed sentence. He stated that, based on what he had heard, he could not be a fair and impartial juror. During voir dire, A.S. stated he could consider all three punishments but would lean more toward death or life without parole. He stated he could not consider life imprisonment for an intentional murder, because with good time credits that would not be a just punishment for such a severe crime. After hearing the suggestion that he might not be an appropriate juror for this case, A.S. said he felt he was an eligible juror. He stated that life imprisonment would obviously be the lesser of the three choices, down on his list, but that he could consider it. He stated that life without parole would be a better option if Rizember were convicted of intentional murder. AS. was excused by a peremptory challenge and did not sit on Eiz-embers jury. However, he should have been excused for cause. Had the trial court properly excused A.S., Eizember would have had a peremptory challenge available to use on either juror J.S. or D.B.

*249 T7 On his questionnaire, Juror J.S. stated that if guilty, the defendant would be on death row and eventually executed. J.S. stated that for that reason, were he the defendant, he would not want J.S. on his jury. J.S. also said he wanted to be on the jury so justice could be served. J.S. indicated he was willing to reschedule rotator cuff surgery-not a minor procedure-to ensure that he served. During voir dire J.S. said that he could consider all three punishments equally. His questionnaire responses were not discussed.

18 The majority suggests that, read in context, all three jurors' questionnaires and voir dire answers showed they could consider all three punishment options. The majority resists this Court's previous holdings that a juror must fairly consider each punishment. 7 Frankly, under these cireumstances, whether the jurors could fairly consider or merely consider all three punishments does not matter. The evidence shows the responses met neither standard. Jurors A.S. and D.B. flatly stated they could not consider all three punishments. D.B. explicitly stated she favored the death penalty and felt life without parole was a waste of taxpayer money. AS. stated that life imprisonment was not a just punishment for intentional murder. The majority admits, in D.B.'s case, that her "responses suggest she might have trouble considering all three options equally", but suggests that any consideration will do as long as the juror is not "irrevocably committed to any one punishment." 8 As applied to these jurors, this conclusion is absurd. While maintaining obvious biases, these jurors stated they could "consider" the punishment options. The majority's holding gives lip service to the constitutional requirement of an unbiased jury, while eviscerating its content. This Court has found reversible error, and remanded for resentencing, in capital cases where jurors exhibit similar biases and cannot consider all three punishments. 9 I would do the same here. I coneur in affirming Eizember's convictions. I also concur in affirming his non-capital sentences, but I dissent to affirming Eizember's sentence of death. I am authorized to state that Judge Arlene Johnson joins in this opinion.

. Rojem v. State, 2006 OK CR 7 , 130 P.3d 287, 295 ; Warner v. State, 2001 OK CR 11 , 29 P.3d 569, 572 ; Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 (1985).

. Jones v. State, 2006 OK CR 17 , 134 P.3d 150, 155 ; Hanson v. State, 2003 OK CR 12 , 72 P.3d 40, 48 ; Warner, 29 P.3d at 573 .

. Rojem, 130 P.3d at 295 ; Warner, 29 P.3d at 573 ; Salazar v. State, 1996 OK CR 25 , 919 P.2d 1120, 1128 .

. Hanson, 72 P.3d at 48 ; Humphreys v. State, 1997 OK CR 59 , 947 P.2d 565, 571 .

. Rojem, 130 P.3d at 295 ; Jones, 134 P.3d at 155 ; Warner, 29 P.3d at 572 .

. Majority Opinion at 225.

. Jones, 134 P.3d at 155 ; Hanson, 72 P.3d at 48 ; Warner, 29 P.3d at 573 .

. Majority opinion at 226.

. Jones, 134 P.3d at 155 ; Hanson, 72 P.3d at 49 ; Warner, 29 P.3d at 574 ; Salazar, 919 P.2d at 1128-29 .