Amicus Curiae Brief — Gray v. Mississippi

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

BON ee ee eS ee

No. 85-5454 @)

In The

Supreme Court of the United States

October Term 1986

DAVID KANDOLPH GRAY,

Petitioner,

STATE OF MISSISSIPPI,

Respondent.

_ BRIEF AMICI CURIAE IN

SUPPORT OF THE PETITIONER

BY THE. NORTH CAROLINA ATTORNEY

GENERAL AND THE

12 AMICI THAT APPEAR ON THE INSIDE COVER

Lacy H. Thornburg

’ Attorney General

Joan H. Byers

Special Deputy Attorney General

David Roy Blackwell

Assistant Attorney General

Counsel of Record

P. O. Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-6012

“US ey TS es

88 dey he

Alabama by Charles A. Graddick, Attorney General

California by John Van de Kamp, Attorney General

erect Ser gt She lienten eo

Pocda ty fim Smith, Atoney Gone

Ilinois by Neil F. Hartigan, Attorney General’

Indiana by Linjey E. Pearson, Attorney General

Louisiana by William J. Guste, Jr., Attorney General

South Carolina by T. Travis Medlock, Attorney General

South Dakota by Mark V. Meierhenry, Attorney General

Virginia by Mary Sue Terry, Attorney General

Wyoming by A. G. McClintock, Attorney General

QUESTION PRESENTED FOR REVIEW

MAY THE ERRONEOUS EXCLU-

SION OF A JUROR FROM THE

PANEL IN A CAPITAL MURDER

TRIAL ON THE BASIS OF

WITHERSPOON v. ILLINOIS BE

HARMLESS ERROR?

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE. .......---csssssssesesesnersssnreenennneneensens 2

STATEMENT OF THE CASE.............ssccescesseessessesssnessnsseesnensesecsssenenees 2

SUMMARY OF THE ARGUMENT ...........:ccssssssseseessensnsnessnneenenneenens 3

ARGUMENT

THE MAJORITY OF STATES REQUIRE A DEFEN-

DANT TO SHOW PREJUDICE RESULTED FROM

THE TRIAL COURT’S ERRONEOUS GRANT OR

DENIAL OF A CHALLENGE FOR CAUSE MADE IN

THE COURSE OF A FELONY JURY TRIAL. NEI-

THER THE CONSTITUTION NOR THE SPECIAL

DUTIES AND RESPONSIBILITIES OF ‘A CAPITAL

JURY JUSTIFIES THE REJECTION OF THE HARM-

LESS ERROR DOCTRINE IN WITHERSPOON IS-

0 SSE SP I SR A 78 4

DOINCLUSION ...ncccccecccesscecsccsessseossonscossccseosensscosesssosessoessenesenssosssosenseses 15

iii

TABLE OF AUTHORITIES

AGRE 0. TAMER, GID B. FE Go eee cvcexssessesesssessseossncvecesvsncsensscescsees 1

Batson v. Kentucky, 476US. __, i

106 S.Ct. 1712, 90 L.Ed.2d 79 (1986)..........ccccccscesserceseeeeeeeees 9,14

Berkemer v. McCarty, 468 U.S. 420 (1984) ...........ccccccssssessseseeeseeeees 11

Chapman v. California, 386 U.S. 18 (1967)...........c0000008 10, 11, 12, 15

Davis v. Georgia, 429 U.S. 122 (1976) .........ccccccecssecsserseesseeseeeseens 2,3,8

Delaware v. Van Arsdall, 475 U.S.___,

106 S.Ct. 1431, 89 L.Ed.2d 674 (1985)...........cccccseseesesesesereneesenes 11

Gideon v. Wainwright, 372 U.S. 335 (1963) .......cccscccessesereneeeeeeeeees 12

Harrington v. California, 395 U.S. 250 (1969) ........cccccccecccsecseeeseeeees 11

Hooper v. Evans, 456 U.S. GOS (1982) ..........ccccccccsseessesereseeeeeecereeseees 14

Lockhart v.McCree,476U.S.

106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) ..0.......cceseseseeeeees 9,10, 14

McKaskle v. Wiggins, 465 U.S. 168 (1984) ..........cccccccesescereeseveeeseseees 12

Nix v. Williams, 467 U.S. 431 (1984) .........ccccccssesssseecesesseseeseseereeseees 11

Payne v. Arkansas, 356 U.S. 560 (1958) uisisetoicenempaoeneniscapinccsstednbet 12

People v. Culhane, 33 N.Y.2d 90, 350 N.Y. Supp. 2d

381, 305 N.E.2d 469, 71 ALR 3d 956 (1973) ......ecccccseseseceseseceseees 6

People v. Murphy, 99 A.D.2d 613,

FEA Fis hs CU, ae ie vn cnccciccsvecssersseconzesccsevestevenesnetocsesit 6

Rose v. Clark, US. __,

wos Ae Eee eee 11, 13

Rushen v. Spain, 464 U.S. 453 (1983) .........cccccccceseesseeeeeesseceseeeeeeeees 12

Schneble v. Florida, 405 U.S. 427 (1972) ......cccccccssceesseeeseeeeeeeceeeeees 11

State v. Potts, 100 N.C. 457, 6 S.E. 657 (1888)..........ccccccccceseeseeeeeeeee 5

Strickland v.Washington, 466 U.S. 668 (1984) ............cseseeeseesees 11,13

Turner v. Murray, 476U.S.__, 106 S.Ct.

eee IT a cinreiechccinibeoniiinbinbessiectcsnestngiscesenensseies 4

United States v. Hasting, 461 U.S. 499 (1983) .......cccccccceeeeeeee 11,12

Vasquez v. Hillery, 474U.S.__, 106 S.Ct. 617, 88

EID i ciereerincatinedibrncndupnivebeenetictinbsbidiastoosssecenninctesnes 12, 14

Wainwrightv.Witt, U.S. __,

105 S.Ct. 844, 83 L.Ed.2d 841 (1985) .0......cccccccececeeeeeeeteeeeeees 2

Witherspoon v. Illinois, 391 U.S. 510 (1968) ........cccccceeeeeeeeees passim

Zant v. Stephens, 462 U.S. 862 (1983) scoccssorsssseceseeneesfcdvees1 4

Fifth Amendment 12

IIIT... cosssssenessenneennznnecctesscenssesstotanaseniedinninaneseannseasl 2,8

III... °. ccnssnsnenciieiionninemetnsgeasnnssunennentatanienicninnestie 8

RS eae 5

a iain 5

New York Criminal Practice Law (CPL § 270.20)....ecssscssssss 6

The North Carolina Criminal Procedure ACt ..vcc.sssssssssssessese 5

as ee ee

No. 85-545

In The

Supreme Court of the United States

Octobe Term 1986

DAVID RANDOLPH GRAY,

BRIEF AMICI CURIAE

INTEREST OF THE AMICI CURIAE

The amici curiae here consist of States, each of which maintain

capital punishment for certain murders. The States, by statute or case

decision, utilize jury selection procedures allowing the exclusion of

veniremen consistent with this Court’s decisions in Wainwright v.

Witt, _ U.S. __ , 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), Adams v. Texas,

440 U.S. 33 (1980), and Witherspoon v. Illinois, 391 U.S. 510 (1968).

Petitioner in this matter asserts that the Mississippi trial court

violated his zight to a jury that was fair and impartial, based upon the

Sixth Amendment guarantee, when the trial judge excused a venireman

plainly qualified to serve on a capital jury, based upon Witherspoon v.

Illinois, supra. The Defendant completed jury selection with peremp-

tory challenges remaining. The State exhausted its peremptory chal-

lenges due to the trial judge’s erroneous refusal, earlier in jury selec-

tion, to exclude some jurors on Witherspoon grounds. The State

utilized peremptory challenges to remove these jurors following denial

of the challenge for cause. The Supreme Court of Mississippi held the

erroneous exclusion constituted harmless error. Petitioner asserts on

the authority of Davis v. Georgia, 429 U.S. 122 (1976), that such error

may never be harmless. The States, by statute or case decision,

recognize the harmless error doctrine in other contexts, and discern no

reason harmless error should not apply in a capital case jury selection

proceeding involving Witherspoon issues.

STATEMENT OF THE CASE

The States adopt the Statement of the Case as set forth by the

respondent State of Mississippi.

SUMMARY OF THE ARGUMENT

The States recognize the special position which a capital jury

occupies in most state capital punishment procedures, and the particu-

larly close scrutiny capital trials must withstand. However, the States

also believe that the fact that a defendant has been sentenced to death

does not preclude a reviewing court from employing the harmless error

rule in determining the effect of a Witherspoon error in jury selection.

The majority of the States require a defendant in a noncapital

felony trial to prove actual prejudice by the improper exclusion or

inclusion of a venireman. These States thus apply the harmless error

doctrine in appropriate instances.

This court has applied the harmless error doctrine to most

constitutional errors in felony proceedings including proceedings in

which the defendant has received the death penalty. The nature of

Witherspoon error and the applicable constitutional provisions fall

within the harmless error guidelines applied by this Court in other

cases. The States urge this Court to recognize the harmless error

doctrine in dealing with Witherspoon error, and specifically urge this

Court to reject the per se reversible error approach to Witherspoon

excludables suggested by the per curiam opinion in Davis v. Geor-

gia, 429 U.S. 122 (1976).

ARGUMENT

THE MAJORITY OF STATES REQUIRE A DEFEN-

DANT TO SHOW PREJUDICE RESULTED FROM

THE TRIAL COURT’S ERRONEOUS GRANT OR

DENIAL OF A CHALLENGE FOR CAUSE MADE

IN THE COURSE OF A FELONY JURY TRIAL.

NEITHER THE CONSTITUTION NOR TIiIE SPE-

CIAL DUTIES AND RESPONSIBILITIES OF A

CAPITAL JURY JUSTIFIES THE REJECTION OF

THE HARMLESS ERROR DOCTRINE IN

WITHERSPOON ISSUES.

The States recognize the position which a capital jury occupies

in most state capital punishment procedures. The States further

recognize the particular sensitivity required of both the trial and

appellate bench to discern and avoid possible juror bias or prejudice.

Turner v. Murray, 476 U.S. __ , 106 S.Ct. 1683, 90 L.Ed.2d 27, 30,

1986). The qualitative difference of death from all other punishments

requires a correspondingly greater scrutiny of the capital sentencing

determination for circumstances which create an unacceptable risk that

the jurors mistakenly or arbitrarily imposed a death penalty. Turner v.

Murray, 90 L.Ed.2d at 36. However, nothing in the nature of the jury

role in capital trial and sentencing proceedings nor in the United States

Constitution itself dictates that a court must hold automatically prejudi-

cial Witherspoon error in the jury selection proceeding. In a capital

case, as in a non capital case, the ultimate concern is that the jury

which tries the defendant be impartial. The application of the harmless

—_ ee

error doctrine to Witherspoon error by a reviewing court does not in

any way jeopardize that goal.

Numerous State courts have considered the improper grant or

denial of a challenge for cause as reversible or harmless error. Most

States, by statute, court rule, or case decision, require a defendant

seeking reversal of his conviction or vacation of his sentence based

upon the erroneous grant or denial of a challenge to a venireman to

demonstrate some prejudice to the defense by the trial court’s errone-

ous action. Proof of prejudice may require the exhaustion of all

peremptory challenges before completion of jury selection or, in

addition to exhaustion of all challenges, may require the attempted

challenge of an additional juror following exhaustion of all peremptory

challenges and the denial of a challenge for cause.

For example, The North Carolina Criminal Procedure Act sets

forth, with specificity, the steps necessary to preserve for appellate

review error in the denial of a defendant’s challenge for cause.

N.C.G.S. 1SA-1214(h) (1983) requires that the defendant exhaust all

the peremptory challenges available to him, renew a challenge for

cause previously denied, and allow the trial court to again deny the

challenge. Interestingly, the North Carolina practice allows the trial

judge to grant additional peremptory challenges to any party who the

trial court determines suffered wrongful denial of a challenge for cause

and utilized a peremptory challenge in lieu thereof. See N.C.G.S.

1SA-1214(i) (1983). Case law imposes similar requirements upon a

defendant asserting error in the trial court’s grant of a state’s challenge

for cause. See State v. Potts, 100 N.C. 457, 6 S.E. 657 (1888).

As an additional example, the New York Criminal Practice

Law (CPL § 270.20) codifies the requirements a defendant must meet

to assert on appeal prejudicial error for the erroneous grant or denial of

a challenge for cause. In the case of the erroneous grant of a State’s

challenge for cause, the statute requires a showing that the State

exhausted all peremptory challenges at the time or exhausted such

challenges before completion of jury selection. The erroneous denial

of a defense challenge for cause constitutes reversible error only when

the defendat exhausted his peremptory challenges prior to the denied

challenge for cause, or the defendant peremptorily challenged the juror

and exhausted his peremptory challenges prior to completion of jury

selection. See People v. Culhane, 33 N.Y.2d 90, 350 N.Y. Supp. 2d

381, 305 N.E.2d 469, 71 ALR 3d 956 (1973), and People v. Murphy, 99

A.D.2d 613, 472 N.Y. Supp. 2d 202 (1984). Absent compliance with

the statute, error in the grant or denial of a challenge for cause stands

harmless.

Cases from other jurisdictions also require exhaustion of

peremptory challenges as proof of prejudice.! Some jurisdictiuns

Tjenkins v. State of Florida, 380 So. 2d 1042 (Fla. App., 1980), review denied 389

So.2d Ul; Finney v. State, 242 Ga. 582, 250 S.E. 2d 388 (1978) cert. denied 441 U.S. 916

(1979); State v. Mitchet!, 104 id. 493, 660 P.2d 1336, cert. denied 461 U.S. 934 (1983);

Foresta v. State, 274 Ind. 658, 413 N.E. 24 889 (1980); State v. Sagebiel, 206 Kan. 482,

480 P.2d 44 (1971); State v. Smith, 430 So. 24 31 (La. 1983); State v. Pellatier, 434 A.2d

52 (Me. 1981); Com. v. Susi, 394 Mass. 784, 477 N.E.2d 995 (1985); People v. Rush, \13

Mich. 539, 71 N.W. 863 (1897); Kennison v. State, 83 Neb. 391, 19 N.W. 768 (1909); j

State v. F ouquette, 67 Nev. 50S, 221 P.2d 404 (1950); State v. Smith, 92 N.M. 533, 59!

P.2d 664 (1979); State v O’Connor, 58 N.D. 554, 226 N.W. 601 (1929); Hartment v. State, *

42 O.S. 568 (1884); AKE v State, 663 P.2d | (Okla. 1983) on rev. 465 U.S. 1099, 105 S.Ct.

1087, 84 L.Ed.2d 53 (NO. 83-5424 dec. Fe ruary 26, 1985); State v. Humphrey, 63 Or.

540, 128 P. 824 (1912); Com. v. Johnson, 299 Pa. Super. 172, 445 A.2d 509 (1982); State

v. Flack, 77 $.D. 176, 89 N.W. 2d 30 (1958); Hammett v. State, 578 S.W. 2d 699 (Tex.

continued

require exhaustion of all peremptory challenges and the attempted

exercise of an additional peremptory challenge following denial of a

challenge for cause. In essence, these jurisdictions require the defen-

dant to accept an unqualified or unwanted juror for a showing of

prejudice.2 A few jurisdictions reject the harmless error approach and

hold as prejudicial any improper grant or denial of a challenge for

cause.> Finally, some cases consider the rejection of a qualified juror

harmless error absent some showing that the jury, as constituted, was

not fair and impartial.4

Thus, the majority of the states require some showing of

prejudice in the erroneous grant or denial of a challenge for cause prior

to awarding a complaining defendant a new trial. Relatively few

jurisdictions adopt a per se error rule. There is no constitutional reason

to alter these traditional rules requiring a showing of prejudice simply

because the improper challenge involved a Witherspoon violation as

opposed to a challenge based on some other ground.

continued from above

Cr. App. 1979) pet. dis. 448 U.S. 725; State v. Hewitt, 689 P.2d 22 (Utah, 1984); Master-

son v. State, 199 Vt. 106, 423 A.2d 845 (1980).

2 People v. Washington, 104 Ill_App. 34 386, 432 N.E.2d 1020 (1982); State v. Cody,

446 So.2d 1278 (App. 2d Cir., 1984); State v. Adcock, 310 N.C. 1, 310 S.E.2d 587 (1983).

3 Scate v. McGrew, 534 S.W. 24 $49 (Mo. App., 1976) and State v. Daniels, 629 S.W.

2d 627 (Mo. App., 1982); Breeden v. The Com., 217 Va. 297, 227 S.E.2d 734 (1976);

State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973).

4 State v. Kendall,200 lowa 483, 203 N.W. 806 (1925); Gall v. Com., 607 S.W.24 97

(Ky, 1980), ovrd on other grounds Payne v. Com, 623 S.W.2d 867 (Ky.1981); State v.

Kluseman, 53 Minn $41, 55 N.W. 741 (1893); State v. Austad, 197 Mon.70, 641 P.2d

1373 (1982); and State v. Sinclair, 57 N.J. 56, 269 A.2d 161 (1970).

In Witherspoon v. Illinois, 391 U.S. 510 (1968), this Court held

constitutionally impermissible the removal from the venire of all

persons who expressed conscientious scruples in opposition to capital

punishment. Justice Stewart wrote that such a jury, swept of all who

expressed reservations concerning the imposition of a death sentence,

fell short of the Sixth Amendment requirement of a fair and impartial

jury in its role as an arbiter of the punishment to be imposed.

Witherspoon v. Illinois, 391 U.S. at 518. Justice Stewart noted that a

Capital jury expresses the conscience of the community on the ultimate

question of life or death, a capital defendant stands constitutionally

entitled to a jury chosen from a venire reflecting the community views

on sentencing issues.

However, nothing in Justice Stewart’s opinion suggests a per se

error rule is applicable to the improper exclusion of a single

venireman, as opposed to a distinctive group, on Witherspoon

grounds. Subsequently, in Davis v. Georgia, 429 U.S. 122 (1976), this

Court, per curiam, reversed a death sentence based upon the improper

Witherspoon exclusion of a single venireman. In dissent, Justice

Rehnquist (joined by Chief Justice Burger and Justice Blackmun)

observed that "[i}t is, moreover, unclear whether the State was entitled

to another peremptory challenge, and surely [Witherspoon v. Illinois,

391 U.S. 510 (1968)} does not decide whether the presence of unexer-

exclusion of a limited number of veniremen.” Davis v. Georgia,

IMlinois, 429 U.S. at 124. Therefore, Davis v. Ge ~rgia, supra, did not

invalidate in the Witherspoon context, the rule of the majority of the

States that requires exhaustion of all peremptory challenges in order to

show prejudice from the improper exclusion of a venireman, and left

open the question whether such an improper exclusion ever may

constitute harmless error.

Moreover, nothing about the improper exclusion of a

venireman on the basis of Witherspoon requires a rule of per se

reversible error. In Lockhart v.McCree,476 U.S. __, 106 S.Ct.

1758, 90 L.Ed.2d 137 (1986), this Court held the removal of

Witherspoon excludables from a capital felony murder venire con-

travened neither the Sixth Amendment fair cross section requirement

nor the constitutional guarantee of a fair and impartial jury. Writing

for the Court, Justice Rehnquist noted that the Sixth and Fourteenth

Amendment fair cross section requirement, as applied to the States,

imposed no requirement that the jury actually chosen reflect the

composition of the community at large. Lockhart v. McCree, 90

L.Ed.2d at 147-48. See also Batson v. Kentucky,476U.S.__, 106

S.Ct. 1712, 90 L_Ed.2d at 79 (Note 4) (1986). Justice Rehnquist

acknowledged that the fair cross section requirement protects the

criminal defendant’s right to the common sense judgment of the

community. Lockhart v. McCree, 90 L.Ed.2d at 148. However, the

Constitution requires no intellectual or political balancing in the

selection of the actual jurors in a criminal trial. Justice Stewart’s

Witherspoon opinion similarly refers to the jury function as the

conscience of the community in determining the capital defendant’s

sentence. As the Lockhart and Witherspoon opinions recognize, the

fair cross section requirement applies to the jury venire from which the

panel flows. No defendant stands entitled to a particular venireman

serving as a juror on the defendant’s jury.

In Lockhart, the Court also discussed the claim that death

qualification deprives the defendant of a constitutionally fair and

impartial jury. In rejecting this argument, this Court held that an

impartial jury consists of nothing more than jurors who will conscien-

tiously apply the law and find the facts. Lockhart v. McCree, 90

L.Ed.2d at 154-55 (1986).

Thus, this Court’s recent cases involving the fair cross section

and fair and impartial jury guarantees recognize that even in a capital

trial the venire from which the jurors are chosen only must represent a

fair cross section of the community. A fair and impartial jury need not

mirror the racial, educational, political, or socio-economic parameters

of the community so long as the jury chosen may conscientiously

apply the law and find the facts. Lockhart v. McCree, supra;

Witherspoon v. Illinois, supra.

Nineteen years ago, this Court recognized that constitutional

error could be harmless. Chapman v. California, 386 U.S. 18 (1967).

The record must reflect, however, and the reviewing court must

determine beyond a reasonable doubt, that the alleged constitutional

error did not contribute to the defendant’s conviction. Chapman v.

California, 386 U.S. at 23-24.

This Court reaffirmed the harmless constitutional error doctrine

in United States v. Hasting, 461 U.S. 499 (1983). Writing for the

majority, the Chief Justice reviewed the court’s Chapman opinion.

Chief Justice Burger noted that "[i]n holding that the harmless-error

rule governs even constitutional violations under some circumstances,

the Court recognized that, given the myriad safeguards provided to

assure a fair trial, and taking into account the reality of the human

fallibility of the participants, there can be no such thing as an error

-free, perfect trial, and that the Constitution does not guarantee such a.

trial." United States v. Hasting, 461 U.S. at 508-9. (citations and

footnotes omitted) The Chief Justice continued, noting that "[s]ince

Chapman, the Court has consistently made clear that it is the duty of a

reviewing court to consider the trial record as a whole and to ignore

errors that are harmless, including most constitutional violations

(citations omitted)." United States v. Hasting, 461 U.S. at 509.

Absent such an approach to errors of even a constitutional dimension,

as the Court noted in Hastings, our courts would become impregnable

citadels of technicality, divorced from the real world and insulated

from their responsibilities.

This Court has considered the applicability of the harmless

constitutional error standard in a variety of contexts. See Rose v.

Clark, US.__, USL.W.__ (July 2, 1986). Recently, this

Court applied the harmless constitutional error analysis to a violation

of the Sixth Amendment confrontation clause Delaware v. Van

Arsdall, 475 U.S.__, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1985). See also

Harrington v. California, 395 U.S. 250 (1969) and Schneble v.

Florida, 405 U.S. 427 (1972). Although not specifically applying the

doctrine of harmless error, this Court adopted a harmless constitutional

error analysis to Fourth Amendment search and seizure issues in Nix v.

Williams, 467 U.S. 431 (1984)(inevitable discovery exception to the

exclusionary rule). In Berkemer v. McCarty, 468 U.S. 420 (1984)

(custodial interrogation), this Court declined to apply the harmless

error doctrine where the record appeared incomplete.

Likewise, ineffective assistance of counsel claims raised under

the Sixth Amendment guarantee of effective assistance of counsel |

stand subject to harmless error analysis. Strickland v. Washington,

466 U.S. 668 (1984). A defendant asserting constitutionally ineffec-

tive counsel must prove both counsel’s constitutional ineffectiveness

and resultant prejudice. The Court recognized that the Sixth Amend-

ment does not guarantee a defendant perfect, error-free representation.

Strickland v. Washington, supra. Other Sixth Amendment cases

applying the harmless error analysis include McKaskle v. Wiggins,

465 U.S. 168 (1984), and Rushen v. Spain, 464 U.S. 453 (1983).

A violation of a defendant’s Fifth Amendment privilege against

self-incrimination is also subject to the harmless constitutional error

analysis in certain circumstances. For instance, Chapman v. Califor-

nia, 386 U.S. 18 (1967) involved prosecutorial comment on the

defendant’s failure to testify. Subsequently, the Court reaffirmed the

harmless error concept as applied to Fifth Amendment violations of

this nature in United States v. Hasting, 461 U.S. 499 (1983).

The only cases in which this Court has refused to recognize a

harmless error analysis deal with errors involving, "constitutional

rights so basic to a fair trial that their infraction can never be treated as

harmless error...", Chapman v. California, 386 U.S. at 23, or those

errors which, due to their nature, the Court cannot ascertain beyond a

reasonable doubt did not contribute to the verdict. Chapman v.

California, supra. These types of error include the State’s total denial

of a criminal defendant’s Fifth Amendment right to counsel; Gideon v.

Wainwright, 372 U.S. 335 (1963); or the State’s coercion of a confes-

sion; Payne v. Arkansas, 356 U.S. 560 (1958), or the State’s system-

atic exclusion of blacks from a grand jury. Vasquez v. Hillery, 474

U.S. _, 106 S.Ct. 617, 88 L.E.2d 598 (1986).

In Vasquez, for example, this Court, in rejecting a harmless

error analysis, noted that systematic exclusion of blacks from the grand

jury undermined the structural integricy of the criminal tribunal itself,

since the grand jury chose whether to return a true bill or not, the

degree of the offense to charge, and whether or not to return single or

multiple indictments against a particular defendant. Additionally, the

very nature of the grand jury process rendered impossible any attempt

by the appellate court to determine the violation’s effect on the jury

verdict.

Thus, the Court will not apply the harmless error analysis

where the case involves a violation of a basic, substantial constitu-

tional right. Similarly, the Court will not apply the harmless error

doctrine if the record provides no factual basis for a harmless error

analysis. However, the Court will apply the harmless error analysis

where the alleged constitutional violation concerns other than basic

rights and the effect of the alleged constitutional error appears in the

record. As the majority of this Court recently re-emphasized in Rose

v. Clark, supra:

...While there are some errors to which Chapman does not

apply, they are the exception and not the rule...Ac-

cordingly, if the defendant had counsel and was tried by

an impartial adjudicator, there is a strong presumption that

any other errors that may have occurred are subject to

harmless error analysis.

The matter before this Court plainly falls within those cases in

which this Court consistently has applied the harmless constitutional

error standard. Certainly the fact that this case is a capital one does not

preclude the use of a harmless error analysis since this Court has

employed the harmless error doctrine in various contexts in capital

cases as well as non capital cases. Zant v. Stephens, 462 U.S. 862

(1983); Hooper v. Evans, 456 U.S. 605 (1982). The issue of applica-

bility of the harmless error doctrine, then, revolves around the type of

constitutional error asserted as opposed to whether or not the case is a

Capital one.

The particular facts of this case involve the erroneous grant of a

State’s Witherspoon challenge for cause when the defendant retained

peremptory challenges and, earlier in the selection process, the trial

judge improperly denied Witherspoon challenges and forced the Sta‘e

to expend peremptory challenges to remove the plainly unqualified

jurors. While this case raises the issue of the erroneous Witherspoon

exclusion of a juror, the case does not involve the wholesale exclusion

of the entire class of persons opposed to or expressing reservations

concerning the death penalty. Thus, although raising a Witherspoon

condemned by this Court in Witherspoon v. Illinois 391 U.S.510

(1968). Furthermore, this case presents the Court with no wholesale

exclusion of a distinctive group from the venire, grand jury, or from

the petit jury itself, condemned in Batson v. Kentucky, 476 U.S.

___,106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See also Lockhart v.

McCree, 476U.S.__, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) and

Vasquez v. Hillery,474U.S.__, 106 S.Ct. 617, 88 L.Ed.2d 598

(1986). In fact, as Justice Rehnquist noted in Lockhart v. McCree,

supra, Witherspoon excludables do not constitute a distinctive group

for fair cross section purposes. The facts herein contain no suggestion

that the jury, as constituted, failed conscientiously to apply the law and

find the facts as required by the Sixth amendment fair and impartial

jury guarantee. See Lockhart v. McCree, supra. The alleged

a oe

constitutional error, then, in no manner affected the defendant’s

substantial rights since there is no showing that the jury which did try

the defendant was other than an impartial adjudicator. Thus, under

these facts, the alleged constitutional error in no manner undermines

the structural integrity of the criminal tribunal itself, nor does the

asserted error strike at the fundamental nature of the jury’s sentencing

determination. Application of the harmless constitutional error analy-

sis clearly is warranted under such circumstances. Chapmua v.

California, 386 U.S. 18 (1967).

The facts necessary to a reviewing court’s determination

whether or not the constitutional error contributed to the jury’s sen-

tencing decision plainly appear in the record. Capital case records on

appeal almost invariably contain, or may be amended to contain, the

record of the jury selection proceedings, including the voir dire ques-

tioning and the arguments of counsel concerning Witherspoon chal-

lenges and exclusions. The record, too, plainly reveals the number of

peremptory challenges remaining to the defendant and the State. Thus,

a reviewing court may readily ascertain whether, under the facts of a

particular case, the defendant suffered actual prejudice or the court's

error, if any, is harmless in the particular context.

CONCLUSION

The appellate courts must carefully scrutinize capital sentenc-

ing cases for circumstances which create an unacceptable risk that the

jurors mistakenly or arbitrarily imposed a death sentence. In the

course of this scrutiny, however, the courts must avoid standing as

impregnable citadels of technicality and recognize that fallible human

beings conduct criminal trials. A perfect trial occurs only in fiction.

Where constitutional error affects no right basic to a fair trial, and the

record provides an adequate basis in fact tor a determination that the

constitutional error appears harmless beyond a reasonable doubt, the

appellate courts should accept the human fallibilities inherent in our

system of laws administered by humans and utilize the doctrine of

harmless error. Where a trial court erroneously grants a State’s

Witherspoon challenge for cause, the error should be harmless indeed

if the defendant failed to exhaust his peremptory challenges at the

conclusion of the jury selection, and particularly so where the State

earlier suffered the erroneous denial of a Witherspoon challenge and

WHEREFORE, the States respectfully urge this Court to apply

the harmless error analysis to Witherspoon exclusions and affirm the

judgment of the Mississippi Supreme Court.

Respectfully submitted,