Petitioners Brief — Gray v. Mississippi

me Court, U.

FILED

vs APR 24 i9a¢

No. 8545454 / | oom

~~ ——————————

IN THE

Supreme Court of the United States

OcTOBER TERM, 1985

Davip RANDOLPH Gray,

Petitioner,

v.

STATE OF MISSISSIPPI,

Respondent.

On Writ Of Certiorari To the

Mississippi Supreme Court

BRIEF FOR PETITIONER

ANDRU H. VoLINsKy

SCHAPIRA AND VOLINSKY, P.A.

108 Bay Street

Manchester, NH 03104

Telephone: (603) 669-7603

Counsel for Petitioner

SS. AS:

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

i

QUESTION PRESENTED FOR REVIEW

Whether it was error for the Mississippi Supreme

Court to affirm Petitioner's sentence of death by holding

that the improper excusal for cause of a juror was

harmless, contrary to Davis v. Georgia, 429 U.S. 122, 97

S.Ct. 399, 50 L.Ed.2d 339 (1976).

ii

TABLE OF CONTENTS

Page

BABES OW APTGRIUNR, oko kccccccccccccdecccececes ~iii

OPINION OF THE CourT BELOw..................... l

POs ob oc enttindadesins db cduiedi de eee l

CONSTITUTIONAL PROVISIONS INVOLVED ............ l

STATEMENT OF THE CASE .... 2... ccccccccccccccces 1

Oe IN bi oid.v.écucéssecdsendsseieee 2

SUMMARY OF ARGUMENT. .............-ccccccccecce xs

BREE. kniecetetdetiaddes tution tee )

A. THe Mississipp1 SuPREME CourRT’s PREMISE

- Tuat THe Erroneous Excusat For Cause Or

A Juror Was HarM_eEss Because Tuts RuLING,

In Errect, ONLY CoRRECTED Prior RULINGS

REFusING To Strike OTHER JuRORS FaILs OF

Its Own Accorp Because THE Prior RULINGs,

THaT REFUSED To STRIKE JURORS WHO CLAIMED

To Have Conscientious Scrup.es As A MEANS

To Avorn Jury SERVICE, WERE CORRECT ...... 7)

B. THe AsSuMPTION TuHaT A Prosecutor AT TRIAL

Wou_pb Have Exercisep UNUSED PEREMPTORY

CHALLENGES AGAINST JuRoRS Hap THEY Nor

BEEN ERRONEOUSLY ExcusEep For Cause Is

Mucu Too SpecutaTIvE To RENDER THE Er-

RONEOUS EXCUSALS HARMLESS ............... 13

1. The Nature Of A J Sentencing Decision

And The Inability To Parl Review The Harm

Caused By An Erroneous Exclusion Mandates

aS 19

COSTED. .c cccvsccscnéctsoceesssesnae 22

TABLE OF AUTHORITIES

Page

CASES:

Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d

EES EES ELISE EE OEE TE TTT 21

Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418 77

L.fd.2d 1134 rah. den 464 U.S. 874 (1983)...... 20, 21

Bernette v. Illinois, 45 Ill. 2d 227, 258 N.E.2d 793, (1970),

EE 16

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 17

a 21

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

RN 10, 13, 14,15, 16, 17, 22

Delaware v. Van Arsdall, 54 U.S.L.W. 4347 (Decided

ee os os cece cndewescesececs 22

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

Ne as cnt cccdcecessceccs 14

Gideon v. Wainwright, U.S. 355, 83 S.Ct. 792, 9 L.Ed. 2d

eee eC hina wasesuccececceccs cs 20

Gray v. Mississippi, 472 So.2d 409 (Miss. 1985)... 1, 5, 9, 11

DMPA SSCEGGWEEGS 6 ccescccvccctecce 14

Grijalva v. State, 614 S.W.2d 420 (Tex. Crim. App. 1981) 17

Harris v. Texas, 457 S.W.2d 903 (Tex. Crim. App. 1970),

en ee

Ladetto v. Massachusetts, 356 Mass 541, 254 N.E.2d 415

(1969), rev'd, 403 U.S. 947 (1971) ................ 16

Marion v. Beto, 434 F.2d 29 (5th Cir. 1970).......... 15, 16

Mathis v. New Jersey, 52 NJ 238, 245 A2d 20 (1968), rev'd

cnc occanccscceseess 17

Moore v. Estelle, 670 F.2d 56 (5th Cir. 1982)......... 17, 18

Reynolds v. U.S., 98 U.S. 145, 156-157, 25 L.Ed.2d 244

EES LEE EL OE 12

Speck v. Illinois, 41 Ill. 2d 177, 242 N.E.2d 208 (1968),

CL 16

Tajra v. Illinois, 45 Ill. 2d 227, 258 N.E.2d 793, (1970),

EE re 16

Tu v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed 749

ae sca cnccecececsoces 20

Vasquez v. Hillery, 54 U.S.L.W. 4069 (Decided January

Ee eek ante bones decbescocecces 20

Wainwright v. Witt, __. U.S. ___, 105 S.Ct. 844 83

L.Ed.2d 841, 851-852 (1985). ............ 11, 12, 14, 15

iv OPINION OF THE COURT BELOW

Table of Authorities Continued The opinion of the Mississippi Supreme Court is

Page reported at Gray v. Mississippi, 472 So.2d 409 (Miss.

Whan v. Texas, 438 S.W.2d 918 (Tex. Crim. App. 1969) 1985).

rev'd, 403 U.S. 946 (1971)... 6... eee cece ee eeeees 16

Wigglesworth v. Ohio, 19 Ohio St. 2d 171, 248 N.E.2d 607, JURISDICTION

(1969), rev’d, 403 U.S. 947 (1971) .....-----++-+e: 16 ee a

Wilherepers v. Illinois, 391 U.S. 510, 88 S.Ct. 1779, 20 The jurisdiction of this Court is invoked under Title 28,

L.Ed.2d 776 (1968). .... 6-6-2 cece cece cece eeeee 10, 14 United States Code § 1257 (3).

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the Accused shall

enjoy the right to a ey and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed.

Fourteenth Amendment, United States Constitu-

tion:

1. Citizenship rights not to be abridged by States.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States. . . .

STATEMENT OF THE CASE

A. Procedural History

Selection of a jury and commencement of Petitioner's

capital murder trial occurred on August 9, 1982. Peti-

tioner was convicted and sentenced to death on August

12, 1982.

The Mississippi Supreme Court entered its opinion, en

banc, on June 5, 1985. The Mississippi Supreme Court

affirmed Petitioner’s conviction and sentence of death.

2

The Court was divided, 6 to 3, on the issue presented

herein.

Petitioner requested rehearing by the Mississippi

Supreme Court. Said request was denied on July 24, 1985.

Petitioner applied for certiorari to the Mississippi

Supreme Court on September 25, 1985. This Court

granted Petitioner's application and request to proceed in

forma pauperis on February 24, 1986.

B. Statement Of Facts

The issue presented for review in this matter relates

solely to the Mississippi Supreme Court's finding that the

erroneous excusal for cause of a prospective juror was

harmless. Petitioner does not contest his conviction here.

Thus, the factual allegations and assertions made by the

State (herein, respondent, the State of Mississippi, shall

be referred to as “State”) and Petitioner at trial are not

relevant and are not presented here. The circumstances of

the voir dire are relevant and are presented in detail.

The jury selection in this capital murder case took less

than one day. The procedure employed by the trial court

involved seating 12 potential jurors in the jury box. At

first, the Court questioned the venire preliminarily as to

knowledge of the case and bias. The Court explained that

the proper test to be accepted as jurors “is that [the

jurors] come into the Box without any bias, prejudice or

feeling, with no desire to do anything other than to return

a verdict to which the evidence might conduct you.”

(Transcript of the trial, hereafter abbreviated, “T”., 336).

The prosecution was then permitted to question the 12

prospective jurors seated in the box. Later, the court

dispensed with its preliminary questioning and the pros-

ecutor took over this role.

3

Motions to strike jurors for cause were made and ruled

upon as the basis for the challenge developed. (See, e.g.,

Joint Appendix, hereafter “JA__.,” 3). Peremptory

strikes were exercised by the State in two ways. At times,

the prosecutor exercised a peremptory challenge imme-

diately after his challenge for cause was overruled. The

prosecutor also exercised peremptory challenges when he

finished each round of questions to the venire. (See, e.g.,

T. 439-440).

After the State completed its questions, the stricken

members of the venire were replaced and the prosecutor

was permitted to question the new jurors and exercise

peremptory challenges against them. (See, e.g., T. 456).

This process continued until the prosecution was satis-

fied with the twelve empanelled juvors. The defense then

followed the same procedure. After the defense was satis-

fied, the prosecution was permitted to question any jurors

not previously questioned by him. The prosecution also

was able to exercise strikes against any of the new mem-

bers of the panel. !'The procedure was then repeated until

both sides agreed to the'twelve jurors seated in the box.

The potential jurors in this matter were questioned in

each other's presence. Although questioning, for the most

part, was directed to individual jurors, each prospective

juror was able to hear the questions and responses pre-

viously made and was able to learn the ramifications of

particular responses.

| It is clear that the parties could not go back and strike members of

the panel that were previously accepted. At one point, the trial court

even accused a group of previously accepted jurors from the court-

room so that they would not be required to listen to the repetitive voir

dire. (T. 561).

4

‘The prosecutor questioned each potential juror exten-

sively concerning that juror’s conscientious scruples

against the imposition of the death penalty. Any prospec-

tive juror who showed the least bit of equivocation was

challenged for cause, and where overruled, peremptorily

stricken. (See, e.g., JA 4-5).

During the voir dire, the trial court noticed that certain

prospective jurors claimed to have conscientious scruples

against the death penalty simply as a means to gain

excusal from the case. The judge complained to the venire

that they were not being fair in this regard (JA 16).

Several prospective jurors were challenged for cause by

the State. (JA 3, 5, 6, 9, 12, 14, 16). The Court denied the

State’s motions and the State decided to strike each of

these jurors peremptorily. Id. One cause challenge rela-

tive to scruples against the death penalty was granted. (T.

506).

“It is abundantly clear from the record that [the trial

judge’s] reason for [refusing to strike these jurors for

cause] was because he believed that the jurors were sim-

ply claiming to have conscientious scruples against the

death penalty so that they could be released from jury

service.” Gray, 472 So.2d at 421 (footnote omitted).

The trial court was in a position to observe the

demeanor of the prospective jurors and the tenor of their

responses. The Mississippi Supreme Court accepted the

trial court’s factual findings concerning the credibility of

the prospective jurors. The trial judge’s findings are cer-

tainly supported by the record.

The attempts to avoid jury service were obvious. Even

the prosecutor recognized the fact that prospective jurors

claimed to have stronger conscientous scruples than per-

haps they actually had. The following comment was made

5

by the prosecutor to venireman Lassabe, one of the pro-

spective jurors that the trial court refused to excuse for

cause.

Let me tell you this, let me say this to you before you

answer, Mr. Lassabe. I need to know whether you

believe in that or whether you want to get off the

Jury, you’d just rather not serve. (JA 13).

Mr. Lassabe denied that he was trying to avoid jury

service. Rather, he claimed that he had just simply “never

settled it in [his] own mind.” (JA 13).

The prosecution, nonetheless, moved to strike Mr.

Lassabe for cause. (JA 15). The trial court overruled the

challenge (JA 15) and the State struck Mr. Lassabe

peremptorily. (JA 15).

It is clear that the trial court understood and exercised

its fact-finding function. The trial court’s ruling, excusing

prospective juror, Schleh, is apposite on this point. Mrs.

Schleh stated that she could never vote to impose the

death penalty in any case. Her testimony was credited

and she was stricken for cause. (T. 504-506).

Problems arose for the trial court, however, when it

came time to question prospective juror, Mrs. H. C.

Bounds. The trial judge struck Mrs. Bounds for cause (JA

26). The Mississippi Supreme Court unanimously found

this ruling constituted error. Gray, 472 So.2d 422 and 424.

Initially, Mrs. Bounds was questioned by the pros-

ecutor. He asked, “And do you have any conscientious

scruples against capital punishment when imposed by

law?” (JA 16) Mrs..Bounds responded, “I don’t know.” (JA

16)

The next few questions posed by the prosecutor were

long and confusing. Finally, the prosecutor asked the trial

court to intercede.

6

The trial court then asked Mrs. Bounds a proper ques-

tion, “Would you automatically vote against the imposi-

tion of the death penalty without regard to any evidence

that might be developed in the trial in this case?” (JA 17).

Mrs. Bounds responded that “[she] would try to listen to

the case.” (JA 17).

The Court then directed Mrs. Bounds to answer the

question yes or no. The question was reread to Mrs.

Bounds twice so that she was sure to understand it. In

response Mrs. Bounds stated, “No, sir.” (JA 17). She

would not automatically vote against the death penalty.

Later, Mrs. Bounds went on to say that she would do

her best. The Court credited Mrs. Bounds’ testimony and

stated that “[nJobody’s doubting your sincerity, Mrs.

Bounds.” (JA 18).

The same question was then put to Mrs. Bounds again

by the court. This time she answered “No, sir, I don’t

think I would.” (JA 18). The prosecutor complained that

Mrs. Bounds had couched her response in equivocal

terms. The question was then put to Mrs. Bounds by the

court two more times. Each time she responded, “No.”

(JA 18).

Over defense objection, the prosecutor was permitted

to question Mrs. Bounds once again on the same issue.

Again, the prosecutor's questions were lengthy and con-

fusing and met with equivocal responses.

Yet again, the trial judge put the proper question to

Mrs. Bounds prefacing the question by reasserting his

beliefin Mrs. Bounds’ honesty and sincerity. After clarify-

ing the question, Mrs. Bounds was asked if she had such

conscientious scruples that would cause her to automat-

ically vote against the death penalty. Mrs. Bounds

7

responded in the negative and further stated that she

thought she could vote for the death penalty. (JA 22).

The prosecutor then asked the court to reverse one of

its previous rulings that denied a challenge for cause

against prospective jurors Ruiz, Coker, Arlean Walker,

Annie Mae Bush, Lassabe, or Price because by this point

the State had used all of its allotted peremptory chal-

lenges. (JA 22).

The trial court reponded to the State’s motion by

instructing the prosecutor to:

Go ask her if she’d vote guilty or not guilty, she could

vote guilty or not guilty and let’s see what she says to

that. If she says, if she gets to equivocating on that,

I’m going to let her off as a person who can’t make up

her mind. (JA 23). (Emphasis added)

Mrs. Bounds was asked by the prosecutor if she could

reach a verdict one way or the other and responded that

she could do so. (JA 24).

The prosecutor then asked Mrs. Bounds:

You could reach a verdict of guilty or not guilty. Now,

if that verdict was guilty and you felt that from the

evidence that you used to him guilty, that evi-

dence which you had used to find him guilty, if you felt

that that evidence was of such a heinous, atrocious

and cruel manner, do you feel that you could vote for

imposing the death penalty on this 28 year old

defendant? (JA 24).

Mrs. Bounds responded “Yes.” (JA 24).

The prosecutor then moved to challenge Mrs. Bounds

for cause. Over objection, Mrs. Bounds was excused for

cause. (JA 25-26). :

8

SUMMARY OF ARGUMENT

A. The Mississippi Supreme Court unanimously

found that one juror had been erroneously excused for

cause. The Court, nonetheless, found this error to have

been harmless. The Court found the error harmless

because it believed that other rulings of the trial court,

refusing to strike jurors for cause, improperly resulted in

the State being required to exercise all of its allotted

peremptory challenges. Had the State not been required

to use all of its peremptory challenges, at least one chal-

lenge would have remained to challenge the juror

improperly excused by the trial court. This premise of the

Mississippi Supreme Court fails of its own accord. The

trial court’s refusal to strike certain jurors for cause was

not erroneous. The trial court found that jurors claimed to

have scruples against the imposition of the death penalty

simply as a means of avoiding jury service. The Mis-

sissippi Supreme Court credited this finding of fact. The

trial court’s rulings, based on his findings of credibility,

were correct. Thus, the prosecution did not have any

peremptory challenges remaining.

B. Assuming arguendo that any peremptory chal-

lenges remained in the hands of the State, this cannot

render the erroneous excusal of a juror harmless. Appel-

late courts cannot speculate as to the curative effect, if

any, of remaining challenges. It is fundamentally unfair to

indulge in such speculation when attempting to determine

whether such an error is harmless or not.

C. The function of a jury in determining which capital

defendant should live or die is so unique and 30 closely

related to the morals and conscience of the community

from which the jury is drawn that it is not appropriate to

review the erroneous exclusion of prospective jurors on a

harmless error basis. An appellate court should not sub-

9

stitute its judgment for that of a jury’s. The nature of the

jury’s decision and the inability to fairly review the harm

caused by an erroneous exclusion mandates a per se

approach.

ARGUMENT

A. THE MISSISSIPPI SUPREME COURT’S PREMISE

THAT THE ERRONEOUS EXCUSAL FOR CAUSE OF

AJUROR WAS HARMLESS BECAUSE THIS RULING,

IN EFFECT, ONLY CORRECTED PRIOR RULINGS

REFUSING TO STRIKE OTHER JURORS FAILS OF

ITS OWN ACCORD BECAUSE THE PRIOR RULINGS,

THAT REFUSED TO STRIKE JURORS WHO

CLAIMED TO HAVE CONSCIENTIOUS SCRUPLES

AS A MEANS TO AVOID JURY SERVICE, WERE COR-

RECT.

The Mississippi Supreme Court unanimously found

that the exclusion of Mrs. Bounds was error.

“Mrs. Bounds’ voir dire was lengthy and confusing.

Nonetheless, she positively stated several times that

she could vote for the death penalty should the cir-

cumstances warrant it. Although her responses were

at times equivocal, she was clearly qualified to be

seated as a juror under the Adams and Witt criteria.

Gray v. Mississippi, 472 So.2nd 409, 422 (Mis-

sissippi, 1985).

The six member majority of the Mississippi Supreme

Court, however, went on to find that the improper excusal

of Mrs. Bounds was harmless. The majority considered

the error harmless because “(t]he force and effect of the

trial court’s ruling was to correct an error he had com-

mitted in refusing to dismiss other jurors for cause after

they had unequivocally stated that they could not vote to

impose the death penalty in any circumstance.” 472 So.2d

at 422-423.

10

The Mississippi Supreme Court's rationale for finding

the Witherspoon? error harmless was clearly premised on

the belief that the trial court erred in refusing to strike

five previously challenged jurors for cause. Once the trial

court overruled the State's challenges for cause, the State

then was “forced” to challenge these jurors peremptorily.

Thus, the rationale continues, had the trial court stricken

the previous jurors for cause, the State would not have

been required to use all of its allotted peremptory chal-

lenges and would have had at least one remaining with

which it could have excused Mrs. Bounds without creat-

ing any error

The Mississippi Supreme Court rationale is a variant of

the argument that unexercised peremptory challenges

render erroneous exclusions for cause harmless. This

argument was rejected in Davis v. Georgia, 429 U.S. 122,

97, S.Ct. 399, 50 LEd.2d 339, (1976).

For reasons discussed in the next section of this argu-

ment, this Court should maintain the precedent of Davis.

However, before considering the propriety of Davis, this

Court must consider the factual circumstances of the case

now before it and determine whether it is even necessary

to consider Davis under these facts.

As previously stated, the Mississippi Supreme Court's

opinion is premised on the idea that the trial court erred in

failing to excuse five jurors who expressed conscientious

scruples against the imposition of the death penalty.* The

2 Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1779, 20 L.Ed.2d

776 (1968).

3 The Mississippi Supreme Court's rationale actually has two parts.

First, the trial court erred in refusing the requested challenges for

cause. Second, this refusal required the State to exercise its peremp-

tory challenges. While this portion of Appellant’s argument focuses

ll

trial court’s rulings, however, were not erroneous.

The trial judge, who was present to observe the

demeanor of the jurors and the tenor of their responses,

did not credit the claims of conscientious scruples voiced

by the jurors. Rather, the court believed the jurors used

these insincere attestations as a means of avoiding service

on the jury. The Mississippi Supreme Court recognized

and accepted these factual findings.

When the voir dire began several jurors expressed

the sentiment that they had conscientious scruples

against the death penalty and could not vote to inflict

it under any circumstances. The trial judge refused

to excuse those jurors for cause and required the

state to exercise peremptory challenges tothem /tis

abundantly clear from the record that his reason for

doing so was because he believed that the jurors were

simply claiming to have conscientious scruples

against the death penalty so that they could be

released from jury service. 472 S2d at 421 (Footnote

omitted) (Emphasis added.)

The trial court found jurors’ claims of conscientious

scruples not to have been credible. A juror that does not

honestly maintain views that would “prevent or substan-

tially impair the performance of his duties as a juror in

accordance with his instructions and his oath,” Wain-

wright v. Witt, __._ U.S. —_, 105 S.Ct. 844, 83 L.Ed.2d

841, 851-852 (1985), should not be stricken.

In Witt, although in a slightly different context, this

Court recognized that “deference is to be paid to the trial

judge who sees and hears the juror.” Witt, 83 L.Ed.2d at

on the first part of the rationale because it is factually incorrect, the

second part of the rationale fails as a logical matter. The trial court's

rulings did not force the State to exhaust its peremptory challenges.

The State did so of its own accord.

12

853. “[Tjhe question whether a venireman is biased has

traditionally been determined through voir dire culminat-

ing in a finding by the trial judge concerning the ven-

ireman’s state of mind . . . such a finding is based upon

determinations of demeanor and credibility that are pecu-

liarly within a trial judge's province.” Witt, 83 L.Ed.2d at

854. (Footnote omitted).

Although these comments on judicial deference are

contained in the portion of the Witt opinion that consid-

ered the deference due a trial court on federal review

under 28 U.S.C. 2254, the reason for granting the trial

court such deference applies equally here. “(T]he manner

of the juror while testifying is oftentimes more indicative

of the real character of his opinion than his words. That is

seen below, but cannot always be spread upon the record.

Care shculd, therefore, be taken in the reviewing court

not to reverse the ruling below on such a question of fact,

except in a clear case.” Reynolds v. U.S., 98 U.S. 145,

156-157, 25 L.Ed 244 (1878) [Cited in Witt, 83 L.Ed.2d at

854].

The trial judge here exercised his traditional fact find-

ing function when he refused to strike the challenged

jurors for cause. The court affirmed its previous rulings

during the questioning of Mrs. Bounds.+

The Mississippi Supreme Court's affirmance of Peti-

tioner’s sentence of death ignores the ten year old prece-

dent of Davis v. Georgia, supra. The Mississippi Supveme

*The prosecution complained that the Court's refusal to strike

prospective jurors Ruiz, Coker, Walker, Bush, Lassabe and Price was

error (JA 22) and that the Court should reverse its rulings. (JA 23).

The court refused, “I’m not going to add any to [the prosecutor's}

challenges . . . I’m not going to go back and give him five more. I'm

going to excuse [Mrs. Bounds] for cause.” (JA 26).

13

Court's decision to ignore Davis was based upon a reading

of the records that its own opinion reveals as being clearly

erroneous.

On the facts of this case, this Court should not even

begin to consider the propriety of the rule set out in

Davis. It should follow the dictates of Witt, credit the trial

judge's findings of fact and hold that there were not cir-

cumstances present in the voir dire of Petitioner's case

that could have rendered the erroneous exclusion of Mrs.

Bounds harmless. Petitioner’s sentence of death should be

reversed.

B. THE ASSUMPTION THAT A PROSECUTOR AT

TRIAL WOULD HAVE EXERCISED UNUSED

PEREMPTORY CHALLENGES AGAINST JURORS

HAD THEY NOT BEEN ERRONEOUSLY EXCUSED

FOR CAUSE IS MUCH TOO SPECULATIVE TO REN-

DER THE ERRONEOUS EXCUSALS HARMLESS.

No circumstance that exists in the record of this case

can justify a finding that the erroneous excusal of Mrs.

Bounds was harmless. However, as this Court may find it

necessary to address the precedent of Davis v. Georgia,

supra, Petitioner here sets out the factors that support

the continued validity of the ten year old precedent of

Davis.

In Davis, a six member majority of this Court reversed

the Supreme Court of Georgia's affirmance of Appellant,

Davis sentence of death. The Georgia Supreme Court had

held that, “(t]he rationale of Witherspoon and its progeny

is not violated where merely one of a qualified class or

group is excluded where it is shown, as here, that others

of such a group were qualified to serve.” 236 Ga. 804,

809-810, 225 S.E.2d 241, 244-245, (Cited in Davis, 429

U.S. at 123).

14

This Court expressly rejected the Georgia Supreme

Court’s rationale. “Unless a venireman is ‘irrevocably

committed, before the trial has begun, to vote against the

penalty of death regardless of the facts and circumstances

that might emerge in the course of the proceedings,’

[Witherspoon] 351 U.S. at 522 n.21, 88 S.Ct. at 1777, he

cannot be excluded; if a venireman is improperly excluded

even though not so committed, any subsequently imposed

death penalty cannot stand.” Davis, 429 U.S. at 124.

Witherspoon prohibited the imposition of a sentence of

death by a jury “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.” 391 U.S. at 522, 88S.Ct. at

1777. Such a jury was considered a “hanging jury.” Id. 391

U.S. at 523. The state was flatly prohibited from

“stack[ing] the deck” in such a fashion, ibid., to enhance

the likelihood of executions.

Witherspoon was subsequently modified in Wainwright ~

v. Witt, supra. Witt held Witherspoon to have been fact

specific. 83 L.Ed.2d 847-848. The Illinois sentencing pro-

cedure considered in Witherspoon vested the jury

with unlimited discretion in choice of sentence. Given

this discretion, a juror willing to consider the death

oer my J arguably was able to “follow the law and

abide by his oath” in choosing the proper sentence.

Nothing more was required. Under this understand-

ing the only veniremembers who could be deemed

excludable where those who would never vote for the

death sentence or who could not impartially judge

guilt. Witt, 83 L.Ed.2d at 850. (Emphasis omitted).

Given the limitations placed upon sentencing discretion

after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L. Ed.2d 346 (1972) and Gregg v. Georgia, 428 U.S. 153, 96

15

S.Ct. 2909, 49 L. Ed.2d 859 (1976); the Court in Witt found

the Witherspoon standard for exclusion of scrupled jurors

inappropriate. The Court in Witt, however, did nothing to

change the consequence of an improper exclusion. It only

changed the standard for exclusion. “(I]f a venireman is

improperly excluded ... any subsequently imposed

death penalty cannot stand. Davis, 429 U.S. at 124, 97

S.Ct. 15 400.5

Prior to Davis, in 1970, the United States Court of

Appeals for the Fifth Circuit considered, for the first

time, the consequences of the improper exclusion of a

juror from a capital murder trial. Marion v. Beto, 434 F.2d

29 (5th Cir. 1970). In his opinion, Judge Simpson

described some of the factors considered by the court in

reaching its conclusion that the improper exclusion of

even a single venireman requires reversal.

The magnitude of a decision to take a human life is

probably unparalled in the human experience of a

member of a civilized society; indeed, many agree on

moral or religious grounds that it is incomprehensi-

ble that an advanced society such as ours should yet

en in such practice. Given the weightiness of the

subject involved it really does not follow that the

improper exclusion of a relatively small number of

the total veniremen examined does not prejudice the

defendant’s rights to an impartial cross-section of the

community. Where, as here, unanimity of decision is

— to impose the death sentence, the stark

reality is that one ig oe me excluded juror may

mean the difference between life or death for a

5 As previously stated, the standard for exclusion of veniremen has

been converted so as to exclude anyone whose views would “prevent

or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.” Witt, 83 L.Ed.2d at

852 (Footnote omitted.)

16

defendant. Although a defendant certainly has no

assurance that a properly empaneled jury will not

impose the death penalty, it seems to us that in light

of the vast difference in treatment which may result

from the improper exclusion of a single venireman,

even that de of error is prejudicial to the rights of

a defendant in a capital case. 434 F.2d at 32 (Footnote

omitted. )é

In addition to Marion v. Beto, a number of other courts

have considered the proper consequences of the

erroneous exclusion of serupled veniremen. Some upheld

the sentences of death on the theory that the presence of

unused peremptory challenges rendered any errors

harmless. A plethora of these cases were summarily

reversed by this Court. See, Wigglesworth v. Ohio, 19

Ohio St. 2d 171, 181, 248 N.E.2d 607, 614 (1969) (one

erroneous exclusion, 5 or 6 unused peremptories), rev’d,

403 U.S. 947 (1971), cited in Davis v. Georgia, supra. 429

U.S. at 123; Harris v. Texas, 457 S.W.2d 903, 908, 909 n.3

(Tex. Crim. App. 1970) (one erroneous exclusion, 4

unused peremptories), rev’d, 403 U.S. 947 (1971), cited in

Davis v. Georgia, supra, 429 U.S. at 123; Whan v. Texas,

438 S.W.2d 918, 920 (Tex. Crim. App. 1969) (one or two

erroneous exclusions, 14 unused peremptories), rev’d, 403

U.S. 946 (1971); Ladetto v. Massachusetts, 356 Mass. 541,

544, 254 N.E.2d 415, 417 (1969) (3 erroneous exclusions,

33 unused peremptories, rev’d, 403 U.S. 947 (1971); Speck

v. Illinois, 41 Ill. 2d 177, 213-14, 242 N.E.2d 208, 227-28

(1968) (50 erroneous exclusions, 79 unused peremptories),

rev'd, 403 U.S. 946 (1971); Bernette v. Illinois and Tajra v.

Illinois, 45 Ill. 2d 227, 232, 258 N.E.2d 793, 796 (1970) (12

6 The Mississippi sentencing scheme, as the Texas scheme under

consideration in Marion v. Beto, supra, requires that a sentence of

death be unanimous. Miss. Code Ann. 99-19-101(3).

A

e 17

erroneous exclusions, 33 unused peremptories), rev’d, 403

U.S. 947 (1971); Mathis v. New Jersey, 52 N.J. 238, 251,

245 A.2d 20, 27 (1968) (3 erroneous exclusions, 5 unused

peremptories), rev’d, 403 U.S. 946 (1971). Other courts, in

opinions written by jurists with substantial experience

either as trial counsel or as trial judges, have rejected the

notion that the reservation of peremptory challenges ren-

ders the erroneous exclusion of jurors harmless. See,

e.g., Moore v. Estelle, 670 F.2d 56 (5th Cir. 1982).

The theory that the presence of unused peremptory

challenges negates the harm of an erroneous exclusion

was rejected prior to Davis, by Davis? and should be

rejected today. Even without questioning the sincerity of

prosecutors, appellate courts should not “countenance

what amounts to an attempt to exercise retroactively. . .

peremptory challenges reserved at the time [of trial].”

Moore v. Estelle, 670 F2d at 57. (Gee, Circuit Judge).

“What would have happened [if a juror had not been

erroneously stricken for cause] is seldom a subject of

satisfactory proof. . . .” Id.

Adoption of such a methodology for examining Wither-

spoon issues would be fundamentally unfair and render

review of this issue meaningless. Grijalva v. State, 614

S.W.2d 420 (Tex. Cr. App. 1981) (Odom, J.). First, reser-

vation of challenges for exercise on appeal would give

prosecutors an unfair advantage. Rather than exercising

his challenges in a give and take fashion with the defense,

as was required in the instant case, a prosecutor could

save a few challenges to be exercised after everyone has

7 In his dissenting opinion in Davis, Justice Rehnquist took issue

with the majority opinion on the question of unused peremptory

challenges. 429 U.S. at 125, 97 S.Ct. at 400.

18

gone home. Then, with the benefit of 20/20 hindsight, he

could “cure” any error that might have occurred.

Second, it is not difficult to imagine prosecutors taking

advantage of a decision that reverses Davis. Every pros-

ecutor in a capital murder trial would then save one or two

peremptory challenges for use by appellate counsel. No

case could be meaningfully reviewed.

An alternative, and perhaps even more compelling

argument against adoption of an unused peremptories--

harmless error'rule was advanced by Judge Goldberg in

his concurrence in Moore v. Estelle, supra. Judge Gold-

berg reasoned that the crucial question was not the affect

of the erroneous ruling on a particular venireman. Rather,

the erroneous ruling affected the composition of the entire

jury.

The proper focus of our inquiry is whether the com-

position of the jury panel as a whole could ibly

ve been affected by the trial court’s error. While it

may be true that the exclusion of a particular ven-

ireman was not affected by the trial court’s erroneous

ruling, it does not necessarily follow that the com-

= of the entire jury panel was unaffected by

the error.

In Texas capital cases, veniremen are examined

seriatum by the defense and prosecution. “[P]Jrospec-

— jurors . . ae ho ee meee | = must

e upon se y.” Pierson

v. State, 614 S.W.2d 102, 107 (1981). Thus, as a pro-

spective juror comes before the court, the prosecutor

must then and there decide whether she will accept

the juror, challenge for cause, or exhaust one of her

limited number of peremptories. Clearly, the pros-

ecutor’s strategic calculus is affected by the number

of peremptory challenges left to her and by the

number of jury panelists still awaiting selection. As

the prosecutor depletes her limited number of

19

peremptory challenges, she may be willing to accept

certain jurors she might have otherwise rejected

given a r reserve of peremptories.

The import of this observation should be clear.

Texas claims that it would have used three of its

eee ogé challenges to exclude the three jurors

ound to have been improperly excused for cause.

However, even if we assume that the prosecutor in

this case would have used those three additional

peremptory challenges, how can we know beyond a

reasonable doubt that the selection of the remainder

of the jury 1 would have been unaffected? If the

trial court ruled properly and the prose: ution

had been forced to use these three additional

peremptory challenges, it is entirely possible that

the State would have chosen to acquiesce in the

impaneling of other prospective jurors it actually

challenged given the luxury of a pocketful of

— 670 F.2d at 58 (Emphasis in orig-

A variant of a seriatum examination of the venire was

employed at Petitioner's trial. Rather than accept or chal-

lenge veniremen one at a time, counsel here accepted or

challenged finite groups of venirernen. Once a member of a

group had been accepted, he or she could not later be

challenged. Thus, Judge Goldberg’s reasoning is appro-

priate here. Erroneous exclusions of jurors affect the

“strategic calculus” of the exercise of peremptory chal-

lenges and impact upon the selection of a panel of jurors as

a whole.

1. The Nature Of A Jury’s Sentencing Decision And The

Inability To Fairly Review The Harm Caused By An

Erroneous Exclusion Mandates A Per Se Approach.

Finally, the erroneous exclusion of a scrupled juror is

not susceptible to any form of harmless error analysis.

The erroneous exclusion should require reversal of a sen-

20

tence of death per se. The nature of the jury’s decision and

the inability to fairly review the harm caused by an

erroneous exclusion mandates a per se approach.®

In Mississippi, a sentence of death must be pronounced

by ajury. Miss. Code Ann. § 99-19-101(1). Its verdict must

be unanimous. Miss. Code. Ann. § 99-19-101(3). Though

not unguided, a Mississippi sentencing jury exercises a

discretionary balancing function in deciding to impose a

sentence of life or death. Id. The jury is required to

balance aggravating factors against mitigating factors;

neither of which are limited by those delineated in the

statute. Miss. Code. Ann. § 99-19-101 (In the proceeding,

evidence may be presented as tc any matter that the court

deems relevant to [the] sentence. . . .); Barclay v. Flor-

ida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134, reh

den 464 U.S. 874 (1983).

Deciding whetier a defendant should live or die, even

under a system that guides a jury’s discretion, is nothing

like the factual determination made by juries in determin-

ing guilt or innocence. Even under sentencing schemes

that are more restrictive than that in Mississippi, the jury

exercises significant discretion (e.g. Texas’ statutory

scheme of three questions). “This process is not an exact

science, and the jurors. . . unavoidably exercise a range

of judgment and discretion while remaining true to their

’ This court has adopted a per se approach in other areas as well.

See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963) (right to counsel) and Tumey v. Ohio, 273 U.S.

510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (right to impartial judge); and

Vasquez v. Hillery, 54 U.S.L.W. 4069 (Decided January 14, 1986)

(Marshall, Brennan, Blackmun and Stevens, JJ.) (improper exclusion

of grand jurors).

21

instructions and oaths.” Adams v. Texas, 448 U.S. 38, 47,

100 S.Ct. 2521, 2527, 65 L.Ed.2d 581 (1980).9

Review of a sentence of death is not similar to the

review of a record to determine if an error was harmless

beyond a reasonable doubt. See, Chapman v. California,

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In

reviewing the improper excusal of a juror, an apyellate

court cannot excise erroneously admitted evidence and

then comb the record on a factual search. The decision to

sentence a man or woman to death is not a factual deter-

mination. It is a moral one. Barclay, 463 U.S. at 951, 103

S.Ct. at 3419, 71 L.Ed.2d at 1144. (“It is entirely fitting

for the moral, factual, and legal judgments of judges and

juries to play a meaningful role in sentencing.”)

An appellate court cannot find that the manner in which

a killing occurred outweighs the youth of the killer. Or,

that the fact of a defendant’s sub-standard intellect does

not outweigh the fact that he killed in the course of a

robbery. These delicate balances are not for an appellate

court to make. Be they ultimately proven right or wrong,

these decisions belong to the consciences and morals of

the diverse communities in the various states that have

enacted capital punishment statutes. This Cour’, under

the guise of harmless error analysis, must not beconie the

ultimate arbitor of who lives and dies.

“The harmless error doctrine recognizes the principle

that the central purpose of a criminal trial is to decide the

factual question of the defendant’s guilt or innocence [cite

omitted] and promotes public respect for the criminal

*“Tt is hard to imagine a system of capital sentencing that leaves

less discretion in the hands of the jury [than that employed in

Texas]. . . .” Adams, 448 U.S. at 465, 100 S.Ct. at 2530 (Rehnquist, J.

lissenting)

22

process by focusing on the underlying fairness of the trial

rather than on the virtually inevitable presence of imma-

terial error.” Delaware v. Van Arsdall, 54 U.S.L.W. 4347,

4349 (Decided April 7, 1986). (Citation omitted) (Empha-

sis added.)

The decision to impose a sentence of death is not factual;

it involves the delicate balancing of a series of intangible

factors. Further, the alteration of the composition of a

jury by the improper exclusion of veniremen is not imma-

terial. On issues of morality, if nowhere else, jurors are

not fungible.

This Court should not use the instant case as an oppor-

tunity to reverse Davis. Instead, this Court should re-

affirm Davis and reverse Petitioner’s sentence of death. -

CONCLUSION

For the foregoing reasons, this Court should reverse

Petitioner's sentence of death and remand the cause for a

new sentencing hearing.

Respectfully submitted,

ANDRU H. VoLINSKY

SCHAPIRA AND VOLINSKY, P.A.

108 Bay Street

Manchester, NH 03104

Telephone: (603) 669-7603

Counsel for Petitioner