Lackey v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Judge.

The appellant now urges that a prospective juror was improperly excused “simply because the prospective juror could not state under oath that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact if he were selected as a juror.” This was not briefed as a ground of error on appeal, but it was urged in oral argument before the court on original submission. Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980), has been decided since this case was argued on original submission.

The appellant asserts that the prospective juror William H. Armstrong was improperly excused in violation of the Sixth and Fourteenth Amendments as construed in Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). The Supreme Court has held that the death penalty may not be imposed even if only one member of the venire was improperly excluded under the Witherspoon test. Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976).

The prospective juror Armstrong testified on voir dire:

“My first question to you, Mr. Armstrong, is whether or not you have conscientious scruples concerning the infliction of the penalty of death as a punishment for a crime in a proper case where the law provides for it and the facts of the case would warrant that punishment?

“A. Well, I’ve given that some considerable thought over the last few days and, yes, I would say that I would — that I would be in favor of capital punishment in extreme cases.

“Q. Well, let me—

“A. If—

“Q. —and could vote for it in extreme cases, is that correct, sir?

“A. In extreme — yes.

“Q. All right. Let me go into — I think by your saying that, nobody has ever had occasion to tell you what the procedure, the particular procedure, for assessing it, is that correct, sir?

“A. Yes, I believe that’s correct.

“Q. Let me just jump on over and assume for a minute that a conviction has been had, because you know that there is a— and I think this might answer some of your questions in this respect.

“In the State of Texas there is a specific procedure in capital cases which is different from any other conviction — for any other crime or assessment of punishment.

“And in a capital murder case the jury is charged by the Court, as they are in other cases, but in a different way.

“The charge of the Court to the jury, the charge being the instructions and the law pertaining to the case, would tell the jury to answer two questions as opposed to voting directly upon death or life.

“These two questions are as follows; based upon the evidence — both of them, whether or not; number one, the defendant committed — well, my mind has not *472 got in gear yet, whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.

“Now, that is the first question. And he would tell you to answer that question yes of no.

“But, in order to answer it ‘Yes,’ the State must prove to your satisfaction beyond a reasonable doubt all the necessary facts to show that ‘Yes’ it was committed deliberately and should have been reasonably expected to cause the death of the deceased.

“Do you see what I’m getting it?

“A. Yes, sir.

“Q. Now, the defendant doesn’t have to show anything. The State has got to prove that it should be answered ‘Yes.’

“The second question is; whether there is a probability that the defendant would commit criminal acts of violence that would render or that would constitute a continuing threat to society.

“That the defendant would — whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

“Under the evidence that you have heard, plus the evidence about him personally that you are allowed to hear under the directions of the Court, whether or not taking those two things together, he probably would commit further acts of violence if he were in free society.

“Do you see what I’m talking about?

“A. Those are two separate questions?

“Q. Yes, those are two separate questions.

“A. Well, would they be answered separately?

“Q. They would be answered as two separate questions.

“Both of them, you would be charged that in order to answer them ‘Yes,’ the evidence must prove to you beyond a reasonable doubt that the answer should be ‘Yes.’

“If it does not prove to you beyond a reasonable doubt that it should be ‘Yes,’ then your answer should be ‘No.’

“And I would tell you that this is the way that punishment is assessed by the jury. Because, if both of those questions are answered ‘Yes’ the judge would sentence the defendant to death.

“You see, that takes it out of the emotional stage of things and lays it on what the evidence indicates he has done and would probably do in the future in an objective fashion.

“You see what I’m getting at?

“A. Yes, I do.

“Q. And following this procedure, if you were called upon in any case in capital murder to assess punishment, could you and would you acting upon the evidence answer these two questions, knowing that if you did answer them both ‘Yes,’ that the penalty would be death?

“A. Yes, I would.

“Q. And, of course, you would consider all of the evidence before you to determine whether or not the answer should be ‘No,’ as far as that is concerned, is that correct?

“A. Oh, yes, that’s — that’s correct.

“Q. And regardless of what evidence is in front of you, your answer would always have to be no unless it had been proved to your satisfaction beyond a reasonable doubt that it should be ‘Yes.’

“Does that make sense to you the way I’m saying it?

“A. Yes, it does.

“Q. All right. And so, you could follow this procedure and in a proper case assess the death penalty, is that correct?

“A. Yes, I believe that would be correct.

“Q. All right. Now, this particular case, Mr. Armstrong, is one in which the indictment alleges that on or about the 31st of July of 1977, that Clarence Allen Lackey did then and there intentionally and knowingly cause the death of an individual, Toni Diane Kumph, by cutting her about the neck with a sharp instrument, and that the said Clarence Allen Lackey caused this death during the commission *473 of the offense of burglary of a habitation with the intent to commit rape.

“That is what a capital murder is, it’s murder committed during the course of committing yet another specific offense, and that is the only time that the death penalty can result.

“And that is, that it is in the course of committing burglary or robbery or arson or kidnapping or aggravated rape, those five other felonies, or killing a policeman or fireman in the course of his duty, knowing that that is what you are doing, or doing it for hire or doing it of a prison guard attempting to escape. And, those are the only times that it is capital murder.

“Just the knowing or intentional taking of a life without justification or excuse, if you stop right there, it is murder. It does not — and, is punishable only by five to 99 years in the penitentiary of life.

“But, when it is done in the course of committing yet one of these other specific crimes, it becomes capital murder and punishable only either by death or by life imprisonment.

“Does that make clear the distinction—

"A. Yes.

"Q. —that they are two distinct offenses?

"A. Yes, sir.

"Q. All right, fine.

“Although you have never served on a jury, Mr. Armstrong, I’m sure that you recognize what I mentioned a few moments ago, that every — that the State has got to prove all of the allegations and the burden of proof is upon the State to prove a person guilty, not him to prove his innocence.

“You do understand that, do you not, sir?

"A. Yes, sir, I do.

"Q. The presumption of innocence, Mr. Armstrong, is so strong that the Court will tell you that in any case that if the defendant does not testify that not only can you not use that as evidence against him, but you cannot even allude to it or discuss it during the course of your deliberations. That in itself is not even allowable.

“It is that strong to protect him that much, and you understand that, do you not?

“A. Yes, sir.

“Q. And he will further tell you that the fact that the defendant has been indicted by grand jury, that that is no evidence of his guilt and cannot be considered as such.

“You understand that, do you not, sir?

“A. Yes, sir.

“Q. Now, one other thing insofar as this punishment, and let me mention to you before I get away from it.

“And, I have informed you that in a capital murder case that only two possible punishments are possible, life or death.

“The law says this in the Penal Code, that a prospective juror shall not be qualified to serve as a juror until you can state under oath that the mandatory penalty of death or imprisonment for life will not effect your deliberations on any issue of fact.

“In other words, think of it this way, it works throughout the trial but it is easy to relate it to the first part of the trial because that is the part of the trial that goes just to guilt or innocence, and you have got to decide that on the evidence presented here in the courtroom, have you not, sir?

“A. Yes.

“Q. You understand that?

“Well, what this section of law is saying, that you must decide those facts on those facts and evidence presented and not let any decision or deliberation you have be colored or influenced by what the punishment in capital murder is. You have got to decide them and let the chips fall where they may later on.

“Do you see what I’m saying?

“A. I see what you’re saying, yes, sir.

“Q. All right. And can you so state that you would follow the law in this regard?

“A. I’m really not certain.

“Q. Do you have a question as to whether you could follow the law?

*474 “And, I don’t argue with you—

“A. Well, I’m just saying I’m not — I’m not prepared to say that I could weigh the facts of the case without the—

“Q. Without that—

“A. —without the prospect of either death or life imprisonment—

“Q. Influence you—

“A. —influencing my—

“Q. All right. Let me read this to you one more time, and I am not suggesting that it should be one way or the other, but would you, for purpose of the Court answer it yes or no when I finish.

“Would you do that for me, please, sir, to the best of your ability. I think you can—

“A. I’ll try.

“Q. All right. A prospective juror — and I read it in the affirmative and I’ll do it the way it is here, which is in the negative.

“A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not effect his deliberations on any issue of fact.

“Can you state that it will not? You’ve got to state it under oath.

“If you can’t state that it will not without — without saying T don’t know,’ you can’t state that it will not.

“Do you see what I’m getting at?

“A. Yes.

“Q. If you cannot state that, just say so and that’s all I’m—

“A. I cannot state that, no, sir. I surely cannot.

“MR. GRIFFIN: Your Honor, he does not qualify under this.

“I will pass the juror and — at this time.

“THE COURT: Do you have any questions?

“MR. BROWN: Is the Court going to rule that he is disqualified on that ground?

“THE COURT: I’m going to ask a question and then I’m going to determine it.

“MR. BROWN: All right, sir.

“THE COURT: The examiner, Mr. Griffin, read to you the law which is Section 12.30(b) .... and it does require exactly as was stated to you.

“In order that there will be no question about it, let me go over it directly again with you, sir, and then if you have any question let me know, and then I will ask the question almost precisely — the same question.

“I inform you that an individual adjudged guilty of a capital felony shall be punished by confinement in the Texas Department of Correction for life or by death.

“I further inform you that the case now on trial is a capital felony case.

“I further state to you that the jury is the sole judge of the facts admitted before you under the rulings of the Court.

“Do you understand?

“A. Yes, I do,

“THE COURT: Do you state under oath that the mandatory penalty of death or imprisonment for life will not affect your deliberations on any issue of fact if you are selected as a juror in this case now on trial.

“Your answer shall be “Yes’ or ‘No,’ as you so answer.

“A. No.

“THE COURT: All right, sir.

“You understand the question, that you cannot take that oath, is that correct?

“A. I’m sorry.

“THE COURT: You — do I understand you to say that you could not.

“A. No, I could not make that oath, sir.”

In Adams v. Texas, supra, the Supreme Court explained:

“[T]he general proposition [is] 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. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

*475 “. .. If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.”

The State urges that this prospective jur- or showed he could not impartially decide the issues on the facts and that he was properly excused for cause. The State relies on Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981); and Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981).

The voir dire of the four prospective jurors was summarized in the opinion in Williams v. State, supra, as follows:

“Venire Member Tillman gave conflicting responses when asked whether under any circumstances he could answer the special punishment issues affirmatively. Although he initially stated that he could answer ‘Yes’ if the issues were proved by the evidence, Tillman later stated that his religious beliefs would prevent him from answering the punishment questions. At the conclusion of his voir dire examination Tillman agreed that he would automatically respond ‘No’ to one of the issues to prevent the appellant from receiving the death penalty even though the evidence was to the contrary.

“Venire Member Criner informed the trial court that she did not believe in capital punishment. Criner further stated that no matter what the evidence might show she believed that she would vote ‘No’ on at least one special issue to prevent the imposition of the death penalty. Criner expressed the belief that she could not answer both issues ‘Yes’ no matter ‘how horrible the circumstances.’

“Venire Member Anderson stated that her conscience would not permit her ‘under any circumstances’ to answer both issues ‘Yes.’ Anderson agreed that she would automatically vote ‘No’ simply because she did not believe in the death penalty.

“Venire Member Oligney also gave conflicting answers when asked whether she could answer the punishment issues affirmatively. Oligney initially stated that she ‘imagine[d]’ that she could vote ‘Yes’ to both issues, but she was not certain. Oligney subsequently concluded that she would probably answer ‘No’ to at least one of the special issues ‘in spite of the evidence’ because she did not believe in capital punishment.”

We, in that case, held:

“The record adequately demonstrates that these venire members’ views about capital punishment would have prevented or substantially impaired the performance of their duties as jurors in accordance with their instructions. Thus we conclude that the trial court did not err in excusing them for cause.”

We held that the court properly excused prospective jurors for cause in Porter v. State, supra, and relating to one of them used the following language:

“While her testimony is not as definite as the previously discussed veniremen it is sufficient to show that Mrs. Rice was properly excused for cause. During direct examination she stated she was not opposed to the death penalty but could not live with herself if she participated in returning a death penalty. When asked if she would exclude the death penalty regardless of what the facts revealed she said, T would assume, yes.’ She later added that she would answer ‘No’ to the special issue questions because of what a ‘Yes’ answer would do to her. On cross-examination the juror stated she believed in the death penalty but did not want to do it herself. She indicated she could set aside her reluctance and determine guilt or innocence. However, when asked if she could set aside this reluctance and ‘do your duty as a citizen and make whatever decision based upon the evidence before you that the law might require’ she said she did not know. On redirect the following occurred:

*476 “ ‘Q. [C]an you sit in judgment in this case .. . and assume the full responsibility of a juror and be fair to both sides as to the facts and the punishment and take that oath of office. “‘A. No.

u * * * *

“ ‘Q. [Wjould you vote against the death penalty as a juror in a capital murder case, regardless of the facts and circumstances that might emerge during the trial of the case?

“ ‘A. Yes, sir.

“ ‘Q. And, as you sit here right now, are you irrevocably committed at this time to vote against the death penalty, regardless of the facts and circumstances that might emerge during the trial?

“ ‘A. Yes, sir.’

“This testimony of the venireman made it clear that she could not be trusted to abide by existing law or follow conscientiously the instructions of the trial judge. Lockett v. Ohio, [ 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978)]; Vigneault v. State, [ 600 S.W.2d 318 (Tex.Cr.App.1980)]; Ex parte Chambers, [ 612 S.W.2d 572 (Tex.Cr.App.1981) ]; Sanne v. State, [ 609 S.W.2d 762 (Tex.Cr.App.1980) ].”

When the voir dire examination of Armstrong is considered in view of Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), Adams v. Texas, supra, Williams v. State, supra, and Porter v. State, supra, we conclude that the prospective juror Armstrong was, over objection, prematurely and improperly excused. He had not testified that his beliefs about capital punishment were so strong that he would disregard the evidence and answer the questions required by Article 37.071, V.A.C.C.P. so that the death penalty could not be assessed. The prospective jurors in Williams v. State, supra, and Porter v. State, supra, had testified that their beliefs against capital punishment were so strong that they would in any case vote “No” in answer to at least one of the questions required by Article 37.071, V.A.C.C.P. so that a defendant could not receive the death penalty. The holding of the Supreme Court in Adams v. Texas, 1 supra, requires that the judgment in this case be reversed. See also Burns v. Estelle, 626 F.2d 396 (5th Cir. 1980).

The judgment is reversed and the cause is remanded to the trial court.

. The author of this opinion of course agrees with Mr. Justice Rehnquist that the majority of the Supreme Court was wrong in Adams v. Texas, supra. See majority opinion in Loudres v. State, 614 S.W.2d 407 (Tex.Cr.App.1981).