Supplemental Brief — Crawford v. Texas

OFFICE OF Tye

CLERK

NO. 80-5693 ___ SUPREME COURT, US,

= ORICNAL COPY

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MURRIEL DON CRAWFORD, JR.,

Petitioner

Vv.

THE STATE OF TEXAS,

- Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

SUPPLEMENTAL PETITION FOR WRIT OF CERTIORARI

COLVIN & BOTSFORD

EMMETT COLVIN

DAVID L. BOTSFORD

5206 McKinney Ave.

Dallas, TX 75205

SELDEN B. HALE

310 West Sixth Street

Amarillo, Texas 79101

ATTORNEYS FOR PETITIONER

NO. 80-5693

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MURRIEL DON CRAWFORD, JR.,

Petitioner

Vv.

THE STATE OF TEXAS,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

SUPPLEMENTAL PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES Petitioner who supplements his original Peti-

tion filed herein by bringing to this Court's attention

the opinion on his second Motion for Rehearing delivered

by the Texas Court of Criminal Appeals on April 15, 1981,

in its Cause No. 57,602. Again, the conviction was af-

firmed, three Judges dissenting. Such opinion is incor-

porated herein as Exhibit A.

Rendition of such opinion does not alter or diminish

the questions presented for review by the Petition for Cer- }

tiorari filed herein.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner respect-

fully prays, as before, the issuance of a writ of certio-

tari to the Texas Court of Criminal Appeals to review this

case for the reasons set forth in his Petition, and that

this Court reverse Petitioner's conviction and sentence of

death.

COLVIN & BOTSFORD

5206 McKinney Ave.

Dallas, TX: 75205

SELDEN B. HALE

310 West Sixth Street

Amarillo, Texas 79101

CERTIFICATE OF SERVICE

I, the undersigned counsel, do hereby certify that a

copy of the above and foregoing Supplemental Petition for

Writ of Certiorari has been mailed to the Honorable Mark

White, Attorney General of the State Texas, on this the

2-7 day of Geant 1981.

She

LOR

EXHIBIT A

MURRIEL CRAWFORD, JR., Appellant

NO. 57,602 Vv. --- Appeal from POTTER County

THE STATE OF TEXAS, Appellee

OPINION ON APPELLANT'S MOTION FOR REHEARING

Appeal is taken from a conviction for capital murder.

Following his plea of guilty, the court instructed the jury to

return a verdict of guilty. The jury then answered "yes" to the

first two questions under Art. 37.071(b) and punishment was assessed

at death.

Appellant contends the court erred in sustaining the State's

challenge for cause to prospective juror Matha Stulce. The

record reflects that the State's challenge was based upon V.T.C.A.

Penal Code, Sec. 12.31 (b) = On original submission, it was held

that appellant's failure to object to the alleged improper exclusion

of Stulce waived the error for purposes of eiauit: a

This Court has consistently held that the failure to object

to the improper exclusion of a prospective juror in a capital

murder trial, waives the error for purposes of iat? In Boulware

Vv. State, 542 S.W.2d 677, this Court stated the following:

* 1/ Y

~ That statute provides as follows:

"Prospective jurors shall be informed that a

sentence of life imprisonment or death is man-

datory on conviction of a capital felony. A

Prospective juror shall be disqualified from

serving as a juror unless he states under oath

that the mandatory penalty of death or imprison- -

ment for life will not affect his deliberations

On any issue of fact." ,

OS es

2/ . Vem es

~-See White v. State, 610 S.W.24 504; Brandon v. State, 599

S.W.2d 567; Russell v. State, 598 S.W.2d 238; Esquivel vy. State,

595 S.W.2d 516; Burks v. State, 583 S.W.2d 389; Earvin v. State, 582.

S.W.2d 794; Von Byrd v. State, 569 S.W.2d 883; Hughes v. State,‘ ' ‘

562 S.W.2d 857; Hovila v. State, 562 S.W.2d 243; Burns v. State, 556

S.W.2d 270; Shippy v. State, 556 S.W.2d 246; Granviel v. State,

552 S.W.2d 107; Boulware v. State, 542 S.W.2d 677.

fis Pts pig’ OM

‘*

CRAWFORD - 2

"In view of the recent decisions of the Supreme

Court of the United States that a constitutional

guarantee may be waived by a defendant's counsel

for the failure to object such as to the improper

organization of a grand jury at the trial level

and our decisions above discussed on waiver, we

hold that the failure to object to the improper

exclusion of a venire member waives that right and

it cannot be considered on appeal. Hovila v. State,

(532 S.W.2d 293] and all cases insofar as they hold

to the contrary are overruled. See also Tezeno v.

State, [484 S.W.2d 374].

"We hold that, absent an objection, the trial court

did not err in excusing the jurors, Hurse and Holt,

even though they were not questioned as thoroughly

as they might have been with reference .to their

ability to render the death penalty no matter what

the trial may reveal." Id. at 682 and 683. a

The Supreme Court of California recently considered similar

issues in People v. Velasquez, 606 P.2d 341 (Cal. 1980) and People

v. Lanphear, 608 P.2d 689 (Cal. 1980). In those cases, the

defendants were convicted of murder and sentenced to death. The

convictions were reversed on appeal after the Court concluded that

prospective jurors had been excused in violation of Witherspoon v.

Illinois, 391 U.S. 510 (1968). The Court rejected the State's

contention that the defendants' failure to object to the excusal

of the jurors waived the Witherspoon error. The State then ap-

pealed and in California v. Velasquez, 448 U.S. __¢ 200 §.Ct.

3042 (1980) and California v. Lanphear, 448 U.S. __..2 101 8.Ct. 57

(1980), the Supreme Court of the United States vacated and remanded

the causes for further consideration in light of Adams v. Texas,

448 U.S. __, 100 S.Ct. 2521 (1980).

In Adams, the Supreme Court recited the factual setting of

the case in tne following manner, "[o]n the State's submission and

over petitioner's objections, the trial judge excused a number of

prospective jurors who were unwilling or unable to take the Sec.

12.31(b) oath." (Emphasis is added). The Court ultimately con-

cluded that Sec. 12.31(b), supra, had been applied in Adams’ trial

to exclude prospective jurors on grounds impermissible under

Witherspoon.

CRAWFORD - 3

Appellant urges that his failure to object to Stulce's

exeliuten on April 12, 1977, should be excused in light of the

fact that Adams v. Texas, supra, was not. decided until June 25,

1980. This Court has previously held that where a defect of

constitutional magnitude has not been established at the time

of trial, the failure of counsel to object does not constitute

waiver. Ex Parte Sanders, 588 S.W.24a 383; Ex Parte Casarez,

508 S.W.2d 620; Ex Parte Taylor, 484 S.W.2d 748. Such a holding

is bottomed on the premise that there was no tactical or logical

reason for counsel's failure to object other than the fact that

the defect had not been established at the time of trial.

In order for this Court to excuse apvellant's failure to

object to Stulce's exclusion, we would be required to assume

that the prospective juror was acceptable to appellant in every

respect and negate the possibility that appellant looked with

favor on the court's action in excusing the venireman. Such

an assumption would further require speculation that appellant

would not challenge ‘her for cause under Art. 35.16, V.A.C.C.P.,

and ‘that he found Stulce's age, sex, race, occupation, religious

preference, marital status, prior jury service etc., acceptable

to the extent that he would not have used a peremptory strike

against her. Even if we speculate that appellant would not have

challenged Stulce -for cause or exercised a peremptory challenge

on her, we cannot assume that he would have desired to have her

as one of the twelve jurors (from the entire panel) who was to

‘wended a verdict in his case. We cannot conclude that the only

reason appellant failed to object to the exclusion of Stulce was

the as yet unestablished defect as found in Adams v. Texas, supra.

We therefore find that appellant may not complain of the

exclusion of prospective juror Stulce for the first time on appeal.

The appellant's motion for rehearing is denied.

TOM G. DAVIS, Judge

(Delivered April 15, 1981)

EN BANC ‘

Roberts, J., dissents for reasons given in his dissenting opinion on original

submission.

é

MURRIEL CRAWFORD, JR., Appellant

NO. 57,602 v. - - =- Appeal from FOTTER County

THE STATE OF TEXAS, Appellee

DISSENTING OPINION ON

APPELLANT'S MOTION FOR REHEARING

The Supreme Court of the United States has now made explicit

the fact that Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d

1/ 2/

776, 88 S.Ct. 1770, (1968) amd its progeny, have drawn the outer

limit beyond which the State has no "valid" or "legitimate in-

terest" in excluding prospective jurors for cause, on account of

their apie ona "views," "beliefs," or "opinions" about the

death penalty. Adams v. Texas, U.S. » 100 S.Ct. 2521, 65

L.Ed.2d 581 (1980). (Hereinafter, Adams. ]

According to the Court, "Witherspoon. ./;. is 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

l/,

Hereinafter Witherspoon.

2/

“Specifically, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138,

22 L.Ed.2d 433 (1909); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. ;

2954, 57 L.Ed.2d 973 (1978); and Adams v. Texas, infra. . $

3/ |

Indeed, the Supreme Court made short shrift of the argument

that V.T.C.A. Penal Code, §12.31(b), is a "separate" cause for

exclusion, distinct from the interests advanced by the Witherspoon

* doctrine: :

"Unlike grounds for exclusion having nothing to do ° a

with capital punishment, such as personal bias, ill-

health, financial hardship, or peremptory challenges, ‘a

§12.31(b) focuses the inquiry directly on the pro- :

spective juror's beliefs about the death penalty, and ox

hence clearly falls within the scope of the Witherspoon pt

doctrine."

Adams _v. Texas, infra, 100 S.Ct. at 2528. (All emphasis is supplied

throughout by the writer of this opinion unless otherwise indicated. )

CRAWFORD, JR. - Rehearing - Dissenting - 2

by their oaths, the death penalty cannot be carried out. Witherspoon

v. Illinois, supra, at 522, n. 21... ." Adams, supra, 100 S.Ct.

at 2527.

\

And on what basis has the Court drawn the "line of neutrality,"

the point at which the State's "legitimate interest" ends, and

the point past which execution of the death penalty "cannot be

carried out?" As seen by the Court, the constitutional stakes

are high;

"In its quest for a jury capable of imposing the death

penalty, the State produced a jury uncommonly willing

to condemn a man to die.

It is, of course, settled that a State may not

entrust the determination of whether a man is innocent

or guilty to a tribunal ‘organized to convict.!

(Citations omitted] It requires but a short step from

that principle to hold, as we do today, that a State

may not entrust the determination of whether a man

should live or die to a tribunal organized to return

a_verdict of death. Specifically, we hold that a sen-

tence of death cannot be carried out IF the jury that -

imposed or recommended it WAS CHOSEN BY exclu ing -

veniremen for cause simply because they voiced general

objections to the death penalty or expressed con-

sclentious or religious scrupples against its inflic-

tion. NO DEFENDANT can constitutionally be ut to

death at the hands of a tribunal SO SELECTED." Lv,

Witherspoon at 521-523,

/

In short, the State - having no "legitimate interest" be-

yond obtaining a capital jury which will follow the law and abide

by the juror's oath - is prohibited from employing any method of

selection which operates to exclude jurors for cause on a broader

‘

4/

Observing that Witherspoon's jury had "not been shown". to (‘t+

be "biased" with respect to the verdict of guilt, the Supreme

Court characterized as "self-evident" the fact that "in its role 7

as arbiter of the punishment to be imposed, this jury fell woefully

short of that impartiality to which (Witherspoon) was entitled 4

under the Sixth and Fourteenth Amendments. [Citations omitted)."

Withersnoon at 518.

CRAWFORD, JR. - Rehearing - Dissenting - 3

criterion, because the Sixth Amendment forbids the result: "a

tribunal, organized to return a verdict of death;" "a jury un-

commonly willing to condemn a man to die." :

The Supreme Court has provided a great deal of guidance to

assist the states with their burden of eee constitutional

methods of juror selection in capital «.1ses. But the burden of

effectuating the Witherspoon doctrine ultimately falls upon tne

states, including the legislatures and courts as well as those

involved in prosecution. Not only the capital defendant has a

great stake in the method of selection employed to obtain his

jury:

"If the voir dire testimony in a given case indicates

that veniremen were excluded on any breuder basis than

this, the death sentence cannot be carried out even

if applicable statutory or case law in the relevant

_ Jurisdiction would appear to support only a narrower

ground of exclusion."

Witherspoon at 522, n. 21.

Thus, in Texas, the death penalty is not only vacated, but by

virtue of Article 37.07, §3(c), V.A.C.C.P., a new trial is re-

quire. .n every case in which the “voir dire testimony. . .

/

“tne State has a "valid interest" in excluding: (1) "pro-

spective jurors who state that their reservations about capital

punishment would prevent them from making an impartial decision

as to the defendant's guilt." Witherspoon at 513; (2) "those who

Say that they could never vote to impose the death penalty or that

they would refuse even to consider its imposition in the case be-

fore them." Witherspoon at 514; (3) “veniremen who. . . made it

unmistakably clear fx that they would automatically vote against

the imposition of capital punishment without regard to any evidence

that might be developed at the trial of the case before them, or

, Cy. J] that their attitude toward the death penalty would prevent

them from making an impartial decision as to the defendant's guilt."

{Emphasis original] Wit*erspoon at 522, n. 21; Adams, 100 S.Ct. at

2525; (4) "those whose betters about capital punishment would lead ,

them to ignore the law or violate their oaths." Adams, 100 S.Ct. at

2529; (5) those who are "so irrevocably opposed to capital punish-

ment as to frustrate the State's legitimate efforts to administer

"“4ts, constitutionally valid death penalty scheme." Adams, 100 S.Ct.

at .

CRAWFORD, JR. - Rehearing - Dissenting - 4

indicates that veniremen were excluded on any basis broader" than

that delineated by Witherspoon.

in Witherspoon, the State's jury selection method was con-

demned because prospective jurors who stated they did not believe

in the death penalty were excused "without any attempt to determine

whether they ec id nonetheless return a verdict of death;" those

who admitted having conscientious scruples against the death

penalty were excused "without any effort to find out whether their

Scruples would invariably compel them to vote against capital

punishment." Witherspoon at 514-515.

The Witherspoon doctrine, said the Supreme Court in Adams,

"is not a ground for challenging any prospective juror," and it |

thought "this point may seem too obvious to bear repetition."

But, it did repeat the point because the Court had noted "frequent

references to Witherspoon as a ground for ‘disqualifying prospective

jurors,'" andit found that "the State, and the Texas Court of

Criminal Appeals, might have fallen into the error of assuming

that Witherspoon and §12.31(b) are both grounds for exclusion,"

explaining in the next paragraph "ye §12.31(b) may lead to "ex-

/

clusions forbidden by Witherspoon.

6/

“Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App. 1975) reflects

just Such an understanding of the Witherspoon doctrine, whereas

Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App. 1976) in overruling

Hovila, id. at 663, did not. Adams alludes to Hovila favorably;

it is omitted from the list of seven opinions perceived by the

Supreme Court to indicate the Court, as previously constituted,

might have fallen into error. Adams, 100 S.Ct. at 2527, 2528, n.

6. On the other hand, Boulware, supra, is relegated to a single

mention in the solitary dissenting opinion of Justice REHNQUIST.

This poetic justice is not lost on the writer. :

s

CRAWFORD, JR. - Rehearing - Dissenting - 5

Thus in my view, the burden on thi8 State is clear: the voir

dire examination of each juror must reflect an "inquiry whicu

separates those who would never vote forthe murs FM penalty from

those who would reserve it for the direst cases," in order to show

“that "the jury-selection standards a_i ee not] undermined

'the very integrity of the. . . process.'" Witherspoon at 523,

n. 22, quoting Linkletter v. Walker, 381 U.S. 618, 639, 85.S.ct.

1731, 14 L.Ed.2d 601 (1965).% .

7/

“Witherspoon at 515, n. 9.

8/ {

“Judge Onion (now Presiding) fully grasped the import of

Witherspoon as regards the burden placed thereby upon the State

in Harris v. State, 457 S.W.2d 903 (Tex.Cr.App. 1971) when he

wrote: |

"Before prematurely challenging for cause a prospective

juror who has only affirmatively answered the so-called

Statutory question, prosecutors should go beyond such

initial expression of ‘conscientious scruples' or dis-

Claimer of belief in capital punishment to clearly as-

certain and establish that the prospective juror would

automatically vote against the death penalty in any

case regardless of the facts, could never vote for or

consider its imposition in any case irrespective of the

evidence, could not abide by the existing law and would

not follow the trial court's instructions, could not

assess such penalty in the particular type of case at a

bar, etc.

If the defense counsel with or without interrogation

indicates there are no further questions, it may be well

for the court to inquire if such action means that the

defense is not opposing the challenge for cause, or if

the defendant personally and his counsel are affirmatively

(satisfied that the juror is impartial], and make sure

Such colloguy is made part of the record."

457 S.W.2d at 911-912. Accord: Grider v. State, 468 S.W.2d 393,

396-399 (Tex.Cr.App. 1971).

while the disposition in Harris, Supra, was subsequently re-

versed by the United States Supreme Court in Harris v. Texas, 403

U.S. 9N7, 91 S.Ct. 2291, 29 L.Ed.2a 859 (1971), we are safe in

, assuming that the reversal did not implicate the language quoted

* above.

Adams, 100 S.Ct. at 2525.

zf

CRAWFORD, JR. - Rehearing - Dissenting - 6

There are those, however, who believe that the "serious

prejudice” dealt capital defendants by a "State's practice"

which “crosse[s] the line of neutrality" and "produce[s] a jury

"uncommonly willing to condemn a man to die," may be waived by

the defendant should he fail to object. Anomolous as this notion

is, insult is heaped on injury when the only justification cited

for it is the Supreme Court's vacating for further consideration

in light of Adams two California Supreme Court judgments reversing

capital murder convictions.

The majority implies that the United States Supreme Court

10/

granted certiorari on the second question presented in both

California v. Velasquez, 100 S.Ct. 3042 (1980) and California

v. Lanphear, 101 S.Ct. 57 (1980), then remanded the causes for

further consideration in light of Adams, because the latter, in

laying the factual setting, stated jurors had been excused

9

In snyopsizing its decision in Witherspoon, the Supreme Court

observed that "(t]he State was held to have no valid interest in

such a broad-based rule of exclusion. ... * * * The defendant,

on the other hand, was seriously prejudiced by the State's practice."

10/

In Velasquez, supra, the second question presented was,

"(2) was alleged Witherspoon erior in this case

waived by defense's failure to object?"

(27 CrL 468.

In Lanphear, supra, the virtually identical second question

presented:

"(2) was alleged Witherspoon error in this case

waived by failure of defense to object?"

27 CrL 4155.

ae

+ Sere

a

CRAWFORD, JR. - Rehearing - Dissenting - 7

"over petitioner's objection." In the realm of speculation it is

far more likely, however, that the Supreme Court's concern with

People v. Velasquez, 606 P.2d 341 (Cal. 1980) and People v.

Lanphear, 608 P.2d 689 (Cal. 1980), focused on the excessively

literal and dogmatic application of the Witherspoon doctrine in-

sisted upon by the California Supreme Court, which not merely

prejudices, but obliterates "the State's legitimate efforts to

administer its constitutionally valid death penalty scheme."

ll/

In Velasquez and Lanphear, the first questions raised by

the State of California in its petitions for writ of certiorari,

respectively, were:

"(1) May prosvective juror be removed for cause under

Witherspoon v. Illinois when he states that there mizht

be hypothetical case in which crime was so heinous that

death penalty could be considered but that he has

not been able to think of hypothetical of that

nature?"

27 CrL 4068.

"(1) May prospective juror be removed for cause

under Witherspoon v. Illinois if trial judge has

described each of separate decisions regarding

guilt, special circumstances, and penalty to be

made by juror, and juror states that he does not

think he could particinvate in deliberations which

might lead to the death penalty."

: 27 CrL 4155.

The Supreme Court of California had, of course, reversed the

convictions in Velasquez and Lanphear because such jurors were

excused, holding that Witherspoon permits exclusion only if "“auto-

matic opposition" to the death penalty is made “unmistakably clear."

If obscured in the past, the opinion in Adams leaves no room

for speculation as to the State's "legitimate interest" in capital

voir dire. Seen. 5, ante. tw

CRAWFORD, JR. - Rehearing - Dissenting - 8

Adams, 100 S.Ct. 2529.

More than an asserted proposition of law, I sense in the

conjecturai resort to California v. Velasauez, supra and California

'¥. Lanphear, supra, a touch of hostility toward the United States

Supreme Court for its failure to draw a black and white pictograph

telling the State courts of last resort that being given the death

penalty by a "tribunal organized to return a verdict of death" con-

stitutes harm to an accused per se, harm of such a fundamental

nature that the presence or absence of an objection by the defense

is inconsequential. This wait-and-see attitude is a sad

departure from the care with which this Court meets its

Onerous responsibilities. How many more ;of capital murder

convictions will ultimately be reversed as a direct result of

Such an untenable application of §12.31(b), supra, vis-a-vis

Witherspoon, recently rectified by Adams? To what extent shall

we go in adding to the list of decisions already faulted?

This Court is fully capable of an independent, dispassionate

12/

reading and analysis of the numerous authorities on the Subject,

notivated only by the welfare of the criminal Justice process in

12/

Of course, no objection was voiced in Witherspoon itself,

por in Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d

‘221 (1970); and in Boulden v. Holman, 394 U.S. 478, 89 S.ct. 1138,

22 L.Ed.2d 433 (1969) the defense actually asserted to exclusions,

as did the defense in State v. Wigglesworth, 243 N.E.2da 607 (Ohio

1969) (holding defendant waived Witherspoon error], reversed per

curiam in Me be v. Ohio, 403° U.S. 947, 91 S.ct. 2284,

_L.Ed.2¢ 857 (1971). See also Harris v. State, 457 S.W.2a 903

(Tex.Cr.App. 1970) {holding that Witherspoon error was waived by

failure of defense to object), reversed in Harris v. Texas, 403

YiS+ 987, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971). In Davis ¥. State,

23: Ga. 694, 225 S.E.2d 24], the objection was found “insufficient,”

ut still the voir dire examination was held constitutionally in-

, a6equate, id. at 244,

Court stated:

CRAWFORD, JR. - Rehearing - Dissenting - 9

this State and the integrity of the law. : It requires no extra-

ordinary insight to conclude that, given Witherspoon error cannot

13/

‘be "harmless," neither can it be "waived" by a failure to object.

But like one who Stands with his back to the street because no

one told him the parade is passing by, the majority indulges a delusion

that liability for the barrage of reversals it ensures today lies

elsevnere; in truth it lies only here. |

I dissent.

CLINTON, Judge

“(Delivered April 15, 1981)

EN BANC

Teague, J. joins

13/

“Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2a ‘

339 (1976) [holding that the lack of systematic, intentional ex-

clusion of a qualified group of jurors is not the determining test,

but rather, whether "a venireman is improperly excluded," and if

so, "any subsequently imposed death penalty cannot stand]."

See also Witherspoon at 523, n. 22, wherein the Supreme

". . .{WJe think it clear, .. . that the jury-

sélection standards employed here necessarily

undermined 'the very integrity of the. . . process’

that decided the petitioner's fate, . . . and we

have concluded that neither the reliance of law

enrorcement officials. . . nor the impact of a re-

troactive holding on the administration of justice

+ + « Warrants a decision against the fully retro-

active application of the holding we announce

today." (Citations omitted]

|

’

-