Jones v. State

LUMPKIN, V.P.J.,

concur in part/dissent in part.

¶ 1 While I agree with the Court’s decision to affirm the judgments in this case, I disagree with the decision to reverse and remand for resentencing and I disagree significantly with the Court’s reasoning on four separate points.

¶ 2 First, I do not agree with Judge Chapel’s “urge” for trial courts to “conduct individual sequestered voir dire in capital cases.” While the language used indicates the issue is still discretionary with trial judges, the verb “urge” suggests that we are imploring trial judges to conduct individual sequestered voir dire. That is not the case. In actuality three judges of this Court find this issue to be purely discretionary. Oklahoma’s Legislature, the entity charged with the responsibility for passing laws in this state, has not mandated individual sequestered voir dire in all capital cases, and neither should we.

¶ 3 Second, I part ways with the Opinion’s analysis with respect to Juror P. A judge must be able to cut-off repetitive questioning, and this is what essentially occurred when the trial judge asked defense counsel to rephrase his hypothetical. I also believe the Opinion exaggerates the record when it states that Juror P. had an “overwhelming bias” and an “unwillingness to fairly consider all three punishment options”. While Juror P. clearly favored the death penalty over the other two options, in theory, she expressed the practical need to know about a defendant’s background before doing so. She also indicated she would not automatically impose the death penalty. 1 Also, she stated at least three separate times that she would consider *158 all three punishment options. Her knowledge of one defendant who had been sentenced to death yet retried several times over a fifteen-year period would seemingly make her less inclined to sentence a defendant to death, rather than the opposite.

¶ 4 And so, I find the issue of whether or not Juror P. should have been dismissed for cause, on the basis of actual bias, to be a close question. 2 While the record provides a more balanced set of facts relating to her qualifications, I would agree to resolve that close call in Appellant’s favor and ultimately agree Juror P.’s views raised a question those views might have prevented or substantially impaired the performance of her duties as a juror in accordance with her instruction and her oath. Rojem v. State, 2006 OK CR 7, ¶ 32 , 130 P.3d 287, 295 . Furthermore, it cannot be fairly said that all doubts regarding her impartiality were resolved in Appellant’s favor. Id. Thus, I agree the trial court abused its discretion in failing to dismiss Juror P. for cause, although I do not agree with the opinion’s one-sided analysis of this issue.

¶ 5 Third, I find the Opinion’s analysis of prejudice relating to Juror C. to be extremely misleading and legally insupportable. On appeal, this Court will not grant relief based on the improper denial of a challenge for cause unless the record affirmatively shows that the erroneous ruling reduced the number of the appellant’s peremptory challenges to his prejudice, and he must demonstrate that he was forced, over objection, to keep an unacceptable juror. Matthews v. State, 2002 OK CR 16, ¶ 16 , 45 P.3d 907, 915 ; Warner v. State, 2001 OK CR 11, ¶ 10 , 29 P.3d 569, 573-74 ; Powell v. State, 1995 OK CR 37 , ¶ 14, 906 P.2d 765, 772 ; Hawkins v. State, 1986 OK CR 58, ¶ 6 , 717 P.2d 1156, 1158 .

¶ 6 But what does the term “unacceptable juror” in this context mean? The phrase apparently came from Hawkins v. State, supra. In using the phrase, Hawkins cited to the syllabus of a case from the Supreme Court of Oklahoma Territory, circa 1899. The phrase “unacceptable juror” does not appear in the text (nor in any case to which the territorial case cites), although the case does discuss cause challenges for actual bias. Nevertheless, our cases have adopted the phrase “unacceptable juror” without clearly defining it.

¶ 7 The term “unacceptable juror” has, at times, been closely associated with the type of partiality that would cause a juror to be removed for cause. See e.g., Grant v. State, 2002 OK CR 36, ¶ 17 , 58 P.3d 783, 790 , judgment vacated, Grant v. Oklahoma, 540 U.S. 801 , 124 S.Ct. 162 , 157 L.Ed.2d 12 , (2003) 3 ; Frederick v. State, 2001 OK CR 34, ¶ 54 , 37 P.3d 908, 927 . But it has also been construed to mean a juror who is “undesirable to his position,” whatever that means. See e.g., Thompson v. State, 1974 OK CR 15, ¶ 10 , 519 P.2d 538, 541 ; Cook v. State, 1982 OK CR 131 , 650 P.2d 863, 868 . This second option is the one used in today’s opinion.

¶ 8 But as pointed out in Rojem , “[t]he better road lies between these two extremes. For a criminal defendant will almost always be able to argue that a juror was somehow undesirable to the defendant’s position, but to require that partiality to rise to the level of a cause challenge would render the statutory protection of the preemptive challenge virtually meaningless.” Rojem v. State, 2006 OK CR 7, ¶ 37, n. 10 , 130 P.3d at 295, n. 10 . *159 In other words, if all one has to do in order to establish prejudice in the denial of a cause challenge (as with Juror P.), is show some juror (Juror C.) served who might have been dismissed with a peremptory for virtually any reason, we have effectively guaranteed that every erroneous ruling on both cause and peremptory challenges will result in reversal. This boggles the legal mind, and should strike fear in all prosecutors, crime victims, legislators, and citizens in the state.

¶ 9 The Opinion states that Juror C. was “undesirable” for three reasons. First, she “favored the death penalty.” But this reason is meaningless, for the great majority of death-qualified capital jurors could be described as favoring the death penalty (to varying degrees). Secondly, her juror questionnaire, which again is not even part of the record in this ease, indicated “that there were only ‘rare’ eases where [the death penalty] should not be imposed for murder.” However, this is a misrepresentation of the juror’s position. In the questionnaire, Juror C. was given a printed list of statements and instructed to “circle the answer or answers that best correspond to your views on the death penalty.” She circled the answer that read: “While I favor the death penalty, I do believe that there are rare cases where the death (sic) should not be imposed even if someone deliberately murdered another person.” The word “rare” was not Juror C.’s— it was one on a preprinted form written by someone else. It could easily have been omitted from the sentence, and Juror C. might still have chosen that sentence as the one closest to her opinion. But, it wasn't. Juror C. was given a limited list of options and she had to choose one of them. She should not be judged completely by what the drafter of the questionnaire provided when the record is silent as to any amplification of the answer.

¶ 10 In reality, Juror C. was perfectly acceptable, one most criminal defendants would have no qualms about. In her questionnaire, she also stated: she was a moderate who admired Oprah Winfrey and Colin Powell; she did not believe in “an eye for an eye”; her views about the death penalty would not make it difficult for her to impose life without the possibility of parole or life with the possibility of parole; she would want to know more about the person and his background in order to determine the appropriate punishment; and that she could imagine a circumstance where, upon finding someone guilty of murder beyond a reasonable doubt, she could still vote against the death penalty. On a scale of 1 to 6 (1 meaning strongly oppose and 6 meaning strongly favor the death penalty), she chose a 4, thus indicating she was only slightly “in favor” of the death penalty.

¶ 11 And then, the Opinion’s third stated reason for calling Ms. C. “undesirable” is that she felt sentences were not carried out and had personal knowledge of a defendant who had been sentenced to death in 1967 but was still alive. However, just as with Juror P., this actually stands as a reason not to impose the death penalty, rather than to select that punishment. Furthermore, these statements conflict with other statements Juror C. made indicating a belief that sentences are indeed carried out.

¶ 12 The point is that this was a very moderate juror, one who can in no way be described as unacceptable or even undesirable. She would be inside the circle of normal beliefs and opinions, where most jurors stand — not one of the one or two who clearly favor one side or the other.

¶ 13 Capital cases should not be reversed on a whim or on extra record material or on language that is so vague that no one knows what it means. I suggest, therefore, that we adopt the following definition: An “unacceptable juror” means that the record clearly shows that the juror in question: (1) actually sat on the jury; (2) voiced positions that plainly called into doubt the juror’s ability to serve fairly; and (3) that any reasonable criminal defense attorney would have used a peremptory challenge to dismiss said juror. Using this definition, I would find Juror C. did not voice positions that “plainly called into doubt” her ability to serve fairly. Furthermore, many reasonable criminal defense attorneys would not hesitate to let Juror C. serve on their client’s jury.

¶ 14 Finally, concerning the verdict form issue, I agree it is cleaner to have a separate verdict form for each murder count. Here, *160 however, based upon the written and verbal instructions given, the strength of the evidence, and the fact that jurors found the existence of both aggravators, I see no need to remand for resentencing and-would therefore affirm the jury’s sentence. It is obvious the murder to avoid arrest aggravator was applied only to count two, while the other aggravator, great risk of death to more than one person, was applied to both counts. I therefore dissent to the Court’s decision to remand for a new resentencing in this case.

. This fact is bolstered by Juror P.'s jury questionnaire, which indicated (1) she could imagine a circumstance when she would vote against the death penalty when someone has committed murder, and (2) she did not favor either side. This information must be considered dictum, however, because jury questionnaires are, in most circumstances (including this one), not part of the record on appeal. Most are sealed by the Court so as not to publicly disclose a juror's personal information. Thus, jury questionnaires are tools used by the attorneys to make a record during voir dire, and they do not, in and of themselves, create a basis for reversing a capital case when they are not admitted as part of the record. You must make your record in order to preserve error. If there is something in a questionnaire that an attorney believes brings into question the juror’s ability to act in a fair and unbiased manner, it is incumbent upon them to *158 raise the issue on the record, give the juror an opportunity to clarify any issues and the trial court an opportunity to rule on thé issue. Otherwise, the issue is waived.

. Under 22 O.S.2001, § 659, a juror exhibits actual bias by having a "stale of mind ... in reference to the case, or to either party which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.... ”

. By now, it should come as no surprise that the opinion, in 14, purports to overrule Grant and Abshier v. State, 2001 OK CR 13 , 28 P.3d 579 , at least to the extent that they conflict with the weak "rule of law” this opinion now announces. I dissent to the Court's attempt to overrule cases that are accurate statements of the law and precedent of this Court. It is interesting that both cases received only one dissenting vote, Judge Chapel’s. The problem, however, is that they were both authored by former Judge Lile, and some individuals seem to be on a mission to erase any evidence that Judge Lile rendered an opinion, good or bad, for the Court.