Beaver v. State
| Decision Date | 20 August 1971 |
| Citation | 475 S.W.2d 557 |
| Parties | Van Allen BEAVER, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Brett B. Stein, Memphis, for appellant.
David M. Pack, Atty. Gen., Everett H. Falk, Asst. Atty. Gen., Nashville, James G. Hall, Asst. Dist. Atty. Gen., Memphis, for appellee.
The appellant, Van Allen Beaver, was convicted of first degree murder in the Criminal Court of Shelby County in 1965 and his punishment was fixed at death by electrocution. Execution of this sentence has been stayed during pendency, first, of his direct appeal (Beaver v. State, 220 Tenn. 133, 414 S.W.2d 841) wherein his conviction was affirmed; and, subsequently, for a final determination of this post-conviction proceeding.
A multiplicity of questions are raised by the petition for post-conviction relief, filed in 1969 by retained counsel. An evidentiary hearing was had, but the evidence presented took the form of a transcript of the trial and of the voir dire examination of prospective jurors preliminary thereto. Beaver expressly waived his appearance at the hearing, and no testimony was heard. The bill of exceptions presented to us is limited to the transcript of the voir dire examination of prospective jurors for the 1965 trial. The trial judge denied post-conviction relief, and the matter has been appealed to us. Although numerous errors have been assigned, the only proposition briefed deals with whether or not the jury which set the death penalty was unconstitutionally chosen contrary to the rule of our United States Supreme Court as pronounced in the landmark case of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.
The learned trial judge, in his memorandum finding of facts and conclusions of law, answered the Witherspoon question in this language:
'In the case at hand, all of the jurors, who were excused for cause concerning the death penalty, by their answers, either said, positively or, in effect, impliedly, that they could not return a verdict of death by electrocution, and, consequently, were not excused simply because they did not believe in capital punishment, or 'simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction'.'
We are unable to agree with this characterization of the record. It is understandable that the jury selection process in this 1965 trial did not conform to the standards of Witherspoon not pronounced until 1968; but the explicit retroactivity of that decision requires us to so judge the earlier proceedings. We find no substantial difference between what was done in the case sub judice and that which was condemned in Witherspoon. Admittedly, the question that the prosecution was 'primarily concerned with' during voir dire was the attitude of the prospective jurors toward capital punishment. Jurors were repeatedly excused for cause when they simply said that they did not believe in capital punishment, or said that they were opposed to it, or didn't believe that they could invoke it, or didn't believe that they could 'render the verdict'. One was even excused for cause because a member of his family was opposed to capital punishment. Most were summarily excused because they answered in the negative when asked if they could return the death penalty. Those jurors would most likely have been shown by further questioning to have been properly subject to dismissal, depending upon whether or not they could consider all the penalties provided by law or were or not irrevocably committed before trial to vote against the death penalty. A disqualifying statement must be unambiguous and it can never be assumed otherwise that that is the position of the prospective juror. The Court did, rather late in the selection process, advise State's counsel that the controlling question was not whether a juror believed in capital punishment, but rather whether he would invoke it in a proper case; but, significantly, other jurors were subsequently excused when they simply said that they did not believe in capital punishment. One juror was excused simply because he said that he doubted that he could vote the death penalty; another because he stated that he didn't have the nerve; another because he said 'it would be awful hard'; and another because he didn't 'think so.'
To point up the fact that this jury was not selected of people who would consider the death penalty, put rather of people committed in advance to it, we quote this from the record:
'Juror: I think, under those circumstances, I would have to say no.
Sometimes, in examining the prospective jurors, State's counsel used 'would you' or 'will you' instead of 'could you' in determining attitude toward invoking the death penalty upon a finding of guilt without mitigating circumstances, obtaining a veritable pledge rather than merely a commitment to consider the death penalty. We do not find that anyone was left upon this jury who did not expressly agree that he could invoke the death penalty upon a finding of guilt without mitigating circumstances.
In Witherspoon, the U.S. Supreme Court condemned that part of the Illinois statute which authorized the exclusion of all who said that they were opposed to capital punishment, and all who indicated that they had conscientious scruples against inflicting it. Those same classes of prospective jurors were uniformly excused for cause in the case sub judice.
Witherspoon holds that a sentence of death cannot be carried out if the jury that imposed or recommended it was 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. The later case of Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, reiterates the rule of Witherspoon that the most than can be demanded of a venireman is that he be willing to Consider all of the penalties provided by state law, and that he not be 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. Exclusion on any broader basis than this markes the carrying out of the death sentence constitutionally impermissible.
However, this does not void the conviction. Witherspoon, supra, is authority for the proposition that there is no per se constitutional rule requiring the reversal of every conviction returned by a jury improperly selected as in that case. And, as in Witherspoon, there is no showing that this jury was biased with respect to the petitioner's guilt. It is only in its role as arbiter of the punishment to be imposed that the jury which tried Beaver fell short of that impartiality declared by the U.S. Supreme Court to be required for compliance with Sixth and Fourteenth Amendment rights.
In Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970), it was held that a Witherspoon violation did not invalidate the guilty verdict and that only the death sentence imposed by the improperly selected jury could not be executed. In Cardinale v. Henderson, 316 F.Supp. 481 (E.D.La.1970) after finding a Witherspoon violation, the court set aside the death penalty and imposed in its place a sentence of life imprisonment. (The trial jury could choose only death or life imprisonment upon a finding of guilt.) The court said, 'the effect of the breach of Witherspoon is to set aside the death penalty and to impose in its place the other sentence which the jury could have imposed following a finding of guilt.' However, in another Louisiana case, Ward v. Henderson, 317 F.Supp. 344 (W.D.La.1970), the court there found a violation of Witherspoon but noted that the U.S. Supreme Court did not specify how such...
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...the venire established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and followed in Beaver v. State, 475 S.W.2d 557 (Ct.Crim.App.1971), is as [A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding ven......
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