# Opposition Brief — Blystone v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0544%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 494 U.S. 299 ## Text IN THE ) SUPREME COURT OF THE UNITED STATES October Term, 1988 R 2 ECEIVED ] No. 88-6222 Ay Whe * OFFICE OF THE CLERK | COURT, Us. 4 SCOTT WAYNE BLYSTONE, Petitioner, v. * , 1 COMMONWEALTH OF PENNSYLVANIA, Respondent “ . a ‘ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF 7 CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA ‘ For two reasons the Petition for Writ of Certiorari should be denied in ; the instant case. First, as we show in Part I, the Commonwealth's challenge for cause of prospective Juror Number 102 was properly granted by the trial M 1 court because her opposition to the death penalty demonstrated an inability to ' — perform her duty as a juror. Second, as we show in Part II, the mandatory 4 1 language of the Pennsylvania death penalty statute does not render said statute 1 „ unconstitutional under the United States Constitution because adequate safeguards . ‘ for defendant/petitioner are contained therein. I. | The trial court in the case sub judice properly granted the Commonwealth's challenge for cause of prospective Juror Number 102 because her opposition ö N to the death penalty demonstrated an inability to perform her duty as a juror. i ; | A recitation and review of the relevant voir dire testimony follow. | ‘ EXAMINATION BY MR. SOLOMON (District Attorney) . | Q. Do you know of any reason why you should not or could not G | serve on this jury? i A. * Q. If, after hearing all the evidence in this case, you believe a the defendant to be guilty of murder in the first degree, 4 could you return such a verdict? A. Yes. Q. A. — t? I don't believe in that. Q. t is the th penalty. Q. Do you have a moral or religious belief against capital punishment? A. Lan a Baptist and I don't believe in capital punishment. Q. Is it against your religious beliefs to support capital punishment ? A. Yes, it is. : Challenge for cause. MR. WHITEKO: I would object to the challenge based on her answer. : The Supreme Court has recently ruled that this is a legitimate reason to challenge for ceuse. I would overrule the objection...... * (See petitioner's 4— 143-144), (emphasis supplied by the respondent). The trial court adequately explained the exclusion of Juror Number 102 (See petitioner's A--122-123): This court, as to Juror Number 102-Hattie M. Royster- had no difficulty in reaching the decision in that her attitude and manner as well as her words, indicated that she had personal and religious beliefs which prevent and substantially impair her performance and duty as à juror in accordance with the court's instructions and her oath. It is conceded that court's dismissal for cause was abrupt, and that more extensive questioning would have placed and Appellate Court in a better position to resolve the issue so far as the printed record is concerned, but this court is clearly of the opinion, based on the printed record as shown, and the attitude and manner of the juror as this court found it to be, that she did not meet the standards set forth and was properly excluded from the jury for cause. The Pennsylvania Supreme Court properly held that the record indicated that Juror Number 102 could not carry out her duty to follow the law as the trial court instructed and, therefore, was properly excluded (See Petitioner's A-- 15-17). The respondent respectfully submits that the Pennsylvania State Courts’ determination was proper. A determination of whether to disqualify a prospective juror is made by the trial judge based on both that juror's answers as well as demeanor, and will not be reversed absent a palpable abuse of discretion. Commonwealth vy. DeHart, 512 Pa. 235, 248, 516 A.2d 656, 663 (1986), cert. denied, __ U.S. 107 S.Ct. 3241 (1987). (emphasis supplied). The only relevant inquiry in making such a determination is “whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath'.” Wainwright . Witt, 469 U.S. 412 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980). It must be noted that a state can remove those jurors who would “frustrate the State's legitimate interest in administering constitutional capital sentencing schemes by not following their oaths.” Witt, 469 U.S. at 423. The record in the case at bar clearly indicates that Juror Number 102 could not temporarily set aside her own beliefs in deference to the rule of law. See Lockhart v. McCree, 476 U.S. 162 (1986). Any further inquiry in this regard was unnecessary. This Court, in Witt, 469 U.S. at 426, noted that there will be situations where a trial judge is left with definite impressions that a prospective juror would be unable to faithfully and impartially apply the law. This is why deference must be paid to the trial judge who see and hears the juror. Further, this Court, in Witt, found that a state court's determination to excuse a juror for cause was finding of fact and was therefore subject to a presumption of correctness accorded by 28 U.S.C. Section 2254 (d) to state court findings of fact in federal habeas corpus proceedings. Id. See Patton v. Yount, 467 U.S. 1025 (1984). The petitioner in the within case also relies on Gray v. Mississippi, U. 8. 107 S. Ct. 2045 (1987), to support his position relative to this issue. This reliance is misplaced. In Gray, this Court considered ‘ a trial court's exlusio for cause a juror who, although initially expressing conscientious scruples against the death penalty, ultimately stated that she could consider the death penalty in an appropriate case. As demonstrated by the record, the facts and issues in Gray are clearly distinguishable from the case sub judice. Based upon the facts and authority cited herin, the Petition for Writ of Certiorari must be denied. II. The Pennsylvania eath penalty statute is not unconstitutional, despite its mandatory language, because adequate safeguards are contained therein. The relevant portion of the statute to this issue is: “the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance...and no mitigating circumstances...", 42 Pa. C.S.A. Section 9711 (e) (1) (iv). The authority cited by petitioner, primarily Eddings v. Oklahoma, 455 U.S. 104 (1982), and Hitchcock v. Dugger, S8. 107 S. Ct. 1821 (1987), involve the issue of considering any relevant "mitigating circumstances” When making such a determination. Inthe case sub judice, no “mitigating circumstances" were presented by the petitioner. -3- „ * + J = 0 V „ n ern pee oe rye: 9 Tr * 1 * In the absence of same, and having found the petitioner guilty of robbery Pennsylvania Supreme Court. It is because of these provisions of the ‘ and a concomitant homicide, the jury properly sentenced the petitioner . oun Pennsylvania death penalty statute, as recited hereinabove, that (Jury to th. discretion is thus neither eliminated, nor unduly limited, but rather is ; The argument set forth by the petitioner herein was expressly refuted | channeled in order to ensure that the death penalty will be imposed in in Commonwealth v. Peterkin, 511 Pa. 299, 326-328, 513 A.2d 373, 387-388 ; a consistent and rational, as opposed to an arbitrary and capricious, 1986), cert denied, U.S. » 107 S.Ct. 962 (1987). The Pennsylvania manner (See petitioner's A---134-135). See Commonwealth v. Zettlemoyer, Supreme Court, in Peterkin, held that . 500 Pa. 16, 454 A.2d 937 (1982), cert. „ 461 U.S. 970 (1983), reh. “(a)lthough it is true that the Pennsylvania death cert. denied penalty statute does not allow a jury to avoid imposition denied, 463 U.S. 1236 )1983). : of a death sentence through the exercise of an unbridled discretion to grant mercy or leniency, the statute permits Based upon the facts and authority cited herein, the Petition for a the defendant to introduce a broad range of mitigating t dence (42 Pa. C.S.A. Section 9711 (e)) that can support Writ of Certiorari must be denied. c weigh 9711 (d)) k by the jury. Appeals for mercy and through of ng tal cases “be suitably directed and limited so as to minimize the risk of wholly arbitrary ac and capricious action.” 849781787 428 U.S. 153, 189 ; (1976), reh. denied, 429 U.S. . ‘ ccee 438 U.S. 565 (1978), does not . require that sentencing mercy or leniency based upon unarticulable reasons. cet holds “that the Eighth and Fourteenth Amendments require the sentencer, in all but not be precluded from considering, as a , any aspect of a defendant's character or any of 1 the circumstances of the offense that the defendant proffer 604. (emphasis in original). C.S.A. Section 9711 (e)(8)) clearly such evidence.... Thus, we find no merit to appellant's constitutional challenges to the Pennsylvania death penalty statute." It must be noted that the Pennsylvania death penalty statute requires that a jury's decision in rendering a death sentence be unanimous, and if @ unanimous verdict cannot be reached with regard to same, a court gust then sentence the defendant to life imprisonment. See 42 Pa. C.S.A. Sections : 971 (c) (1) (iv) and 9711 (e) (1) (v). Also, 42 Pa. C. S. A. Section 9711 (h) (1) provides that @ death sentence is automatically reviewed by the a } For the foregoing reasons, the Petition for Writ of Certiorari should be E denied. Respecfully submitted, Ku , ee . RUSSELL B. KORNER, IR., 5 Assistant District Attorney for the County of Fayette, Commonwealth of Pennsylvania . Office of the District Attorney | \ Fayette County Courthouse 61 East Main Street Uniontown, Pennsylvania 15401 (412) 438-4521 COUNSEL FOR RESPONDENT — — c ' e nr ee ie r * LU i 2 I, RUSSELL B. KORNER, JR., Esquire, being a duly admitted member of the Bar of this Court, hereby certify that a copy of the Brief In Opposition to Petition for Writ of Certiorari to the Supreme Court of Pennsylvania, was served on petitioner's counsel, Samuel J. Davis, Esquire, and John M. Purcell, Esquire, Davis and Davis, 107 East Main Street, Uniontown, Pa. 15401, on March 3, 1989, by personal service. DATE: March 3, 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0544%3A04. Public record. Not legal advice.