487 U.S. 81 (1988), 86-5309, Ross v. Oklahoma

Docket Nº:No. 86-5309
Citation:487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80, 56 U.S.L.W. 4676
Party Name:Ross v. Oklahoma
Case Date:June 22, 1988
Court:United States Supreme Court

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487 U.S. 81 (1988)

108 S.Ct. 2273, 101 L.Ed.2d 80, 56 U.S.L.W. 4676




No. 86-5309

United States Supreme Court

June 22, 1988

Argued January 19, 1988

Reargued April 18, 1988




Petitioner was charged with the capital offense of first-degree murder. An Oklahoma statute provides both parties in capital trials with nine peremptory challenges to prospective jurors. After the trial court denied petitioner's motion to remove for cause prospective juror Huling, who had declared that he would vote to impose death automatically if the jury found petitioner guilty, the defense exercised one of its peremptory challenges to remove him. Although the defense used all nine of its challenges, it did not challenge for cause any of the 12 jurors who actually heard the case. At the close of jury selection, the trial court overruled the objection of petitioner, who is black, that the composition of the all-white jury denied him a fair and impartial trial by his peers. The jury found petitioner guilty and sentenced him to death, and the Oklahoma Court of Criminal Appeals affirmed.


1. Although the trial court erred in failing to remove Huling for cause under Witherspoon v. Illinois, 391 U.S. 510, and Wainwright v. Witt, 469 U.S. 412, such failure did not abridge petitioner's Sixth and Fourteenth Amendment right to an impartial jury, since Huling did not sit on the jury that sentenced petitioner to death, petitioner's peremptory challenge having removed him as effectively as if the trial court had done so. The broad language in Gray v. Mississippi, 481 U.S. 648, 665, that the

relevant inquiry is whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error

(internal quotations omitted; emphasis in original), is too sweeping to be applied literally, and should not be extended beyond its context: the erroneous "Witherspoon exclusion" of a qualified juror in a capital case. Although the failure to remove Huling may have resulted in a jury panel different from that which would otherwise have decided the case, one of the principal concerns animating Gray -- the inability to know whether the prosecution could and would have used a peremptory challenge to remove the erroneous excluded juror -- is absent here, since Huling was in fact removed. The fact that petitioner had to use a peremptory challenge to cure the court's error does not mean that the Sixth Amendment [108 S.Ct. 2275] was violated, since peremptory challenges are not of constitutional dimension,

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but are merely a means to achieve the end of an impartial jury. Petitioner has failed to establish that the jury that actually sat was not impartial, since he never challenged any of the jurors for cause, nor suggested their partiality, and since, in this Court, he neither pressed the claim that the absence of blacks deprived the jury of partiality nor suggested that such absence was in any way related to the court's failure to remove Huling. Pp. 85-88.

2. The trial court's failure to remove Huling for cause did not abridge petitioner's Fourteenth Amendment right to due process by arbitrarily depriving him of his full complement of peremptory challenges. Even assuming that the Constitution renders a State's denial or impairment of the right to exercise such challenges reversible error without a showing of prejudice, cf. Swain v. Alabama, 380 U.S. 202, that "right" would be "denied or impaired" only if the defendant did not receive that which state law provides, since peremptory challenges are a creature of statute, and not constitutionally required, and, accordingly, it is for the State to determine their number and to define their purpose and the manner of their exercise. Although Oklahoma provides a capital defendant with nine peremptory challenges, state law has long qualified this grant with the requirement that the defendant must use those challenges to cure erroneous refusals to excuse jurors for cause. There is nothing arbitrary or irrational about such a requirement, since it subordinates the unfettered discretion to use challenges to the goal of empaneling an impartial jury, and since this Court has sanctioned numerous incursions upon the right to challenge peremptorily. Thus, petitioner's due process challenge must fail, since he received all that Oklahoma law allowed him. Logan v. Zimmerman Brush Co., 455 U.S. 422, and Hicks v. Oklahoma, 447 U.S. 343, distinguished. Pp. 88-91.

717 P.2d 117, affirmed.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 91.

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REHNQUIST, J., lead opinion

CHIEF JUSTICE REHNQUIST delivered the opinion of the court.

During the selection of the jury in his capital murder trial, petitioner Bobby Lynn Ross resorted to one of his peremptory challenges to remove a juror whom the trial court should have excused for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968). He claims that, because of that fact, the Sixth and Fourteenth Amendments to the United States Constitution require reversal of his conviction and sentence of death. We conclude they do not.

In the course of robbing a motel in Elk City, Oklahoma, petitioner killed a police officer. Petitioner was charged with first-degree murder, Okla.Stat., Tit. 21, § 701.7 (Supp.1987), a capital offense, Okla.Stat., Tit. 21, § 701.9(A) (Supp.1987). By statute, Oklahoma provides nine peremptory challenges to both parties in capital trials. Okla.Stat., Tit. 22, § 655 (1981).

The jury selection began with the drawing of 12 names from the 150-person venire. Each of the 12 was examined individually by the court and counsel. Prospective jurors not excused for cause after the voir dire were provisionally seated. If a prospective juror was excused for cause, a replacement juror was called and examined. After 12 jurors had been provisionally seated, the parties exercised their peremptory challenges alternately, beginning [108 S.Ct. 2276] with the prosecution. When a juror was struck, a replacement juror was immediately selected and examined in the manner described above. Once a replacement was provisionally seated, the trial court called for the exercise of a challenge by the party whose turn it was. This procedure was repeated until each side had exercised or waived its nine peremptory challenges.

Darrell Huling's name was drawn to replace the juror excused by the defense with its fifth peremptory challenge. During voir dire, Huling initially indicated that he could vote to recommend a life sentence if the circumstances were appropriate. On further examination by defense counsel, Huling

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declared that, if the jury found petitioner guilty, he would vote to impose death automatically. Defense counsel moved to have Huling removed for cause, arguing that Huling would not be able to follow the law at the penalty phase. The trial court denied the motion, and Huling was provisionally seated. The defense then exercised its sixth peremptory challenge to remove Huling. The defense ultimately used all nine of its challenges. The prosecution used only five, waiving the remaining four.

None of the 12 jurors who actually sat and decided petitioner's fate was challenged for cause by defense counsel. Petitioner is black; the victim was white. At the close of jury selection, the defense objected

to the composition of the twelve people, in that there were no black people called as jurymen in this case, and the defendant feels he's denied a fair and impartial trial by his peers.

App. 25. The trial court overruled the objection, and the trial commenced.

After two days of evidence, the parties gave closing arguments, the trial court instructed the jury, and deliberations began. The jury found petitioner guilty of first-degree murder.1 Following the presentation of evidence and arguments at a separate sentencing proceeding, the same jury found five aggravating circumstances, and sentenced petitioner to death.

On appeal, the Oklahoma Court of Criminal Appeals rejected petitioner's argument that the trial court had committed reversible error in failing to excuse Huling for cause:

The failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error. The record reflects that defense counsel challenged the prospective juror for cause, and, when the court denied the challenge, defense counsel used

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a peremptory challenge. All of [petitioner's] peremptory challenges were subsequently used; but as there is nothing in the record to show that any juror who sat on the trial was objectionable, we are unable to discover any grounds for reversal.

717 P.2d 117, 120 (1986) (citations omitted). We granted certiorari, 482 U.S. 926 (1987), to consider the Sixth and Fourteenth Amendment implications of the trial court's failure to remove Huling for cause and petitioner's subsequent use of a peremptory challenge to strike Huling. We now affirm.

In Wainwright v. Witt, 469 U.S. 412 (1985), the Court held that

the proper standard for determining when a prospective juror may be excused for cause because of his or her views on capital punishment . . . is whether...

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