Gray v. Mississippi

Citation481 U.S. 648,107 S.Ct. 2045,95 L.Ed.2d 622
Decision Date18 May 1987
Docket NumberNo. 85-5454,85-5454
PartiesDavid Randolph GRAY, Petitioner v. MISSISSIPPI
CourtUnited States Supreme Court

Under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and its progeny, the right to an impartial jury under the Sixth and Fourteenth Amendments prohibits the exclusion of venire members for cause in capital cases unless their stated opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339, in effect established a per se rule requiring the vacation of a death sentence imposed by a jury from which a potential juror, who has conscientious scruples against the death penalty but who nevertheless under Witherspoon is eligible to serve, has been erroneously excluded for cause. At voir dire during petitioner's capital murder trial, the trial judge in eight instances denied the prosecutor's motions to dismiss for cause venire members who expressed some degree of doubt about the death penalty. The prosecutor used peremptory challenges to remove those eight panel members. When venire member Bounds, although initially somewhat confused in her response, stated that she could reach a guilty verdict and vote to impose the death penalty, the trial judge nevertheless excused her for cause on the motion of the prosecutor, who by then had exercised all of his peremptory challenges. The judge acknowledged that he had made the prosecutor use peremptory challenges against venire members whose opposition to the death penalty was unequivocal. Ultimately, the Mississippi Supreme Court affirmed petitioner's conviction and death sentence. Although acknowledging that Bounds was clearly qualified to be a juror, the court concluded that her erroneous exclusion did not prejudice petitioner since that error simply corrected other errors the trial judge committed in refusing to dismiss venire members for cause after they unequivocally stated that they could not vote to impose the death penalty.

Held: The judgment is reversed in part and the case is remanded.

472 So.2d 409, reversed in part and remanded.

Justice BLACKMUN delivered the opinion of the Court as to Parts I, II, III-A, III-B-1, and IV, concluding that:

1. Venire member Bounds was clearly qualified to be seated as a juror under Witherspoon and its progeny. Thus, the trial court was not authorized to exclude her for cause. Pp. 657—659.

2. Davis is reaffirmed. Witherspoon violations constitute reversible constitutional error, and cannot be subjected to harmless-error review. Pp. 659-657.

(a) The State Supreme Court's analysis is rejected if and to the extent it is based on the reasoning that the trial judge restored one of the State's peremptory challenges by determining that he had erred in denying one of the Witherspoon motions, and that Bounds' erroneous removal for cause was therefore harmless since the State would have used its restored challenge to remove her in any case. This "unexercised peremptory" argument wrongly assumes that the crucial question is whether a particular prospective juror is excluded due to the court's erroneous ruling. Rather, the relevant inquiry is whether the composition of the jury panel as a whole could possibly have been affected by the error. However, the jury selection process requires a series of on-the-spot decisions weighing the relative objectionableness of a particular venire member against the number of peremptory challenges available at that time. Thus, the nature of the selection process defies any attempt to establish that an erroneous Witherspoon exclusion is harmless. Pp. 661-666.

(b) The State's argument that Bounds' exclusion was a single technical error that should be considered harmless because it did not have any prejudicial effect is unavailing under Davis. Pp. 666—667.

3. The State Supreme Court's judgment cannot stand insofar as it imposes the death sentence. P. 668.

Justice BLACKMUN, joined by Justice BRENNAN, Justice MARSHALL, and Justice STEVENS, concluded in Part III-B-2 that, since it appears that prosecutors often use peremptory challenges to remove venire members who have expressed any degree of hesitation against imposing the death penalty, and because courts generally do not review the prosecution's reasons for exercising peremptory challenges, it cannot be said that an erroneous exclusion for cause of a scrupled, yet eligible, venire member is an isolated incident having no prejudicial effect in any particular case. The constitutional right to an impartial jury is so basic to a fair trial that its infraction can never be treated as harmless error. Pp. 667-668.

Justice POWELL, agreed that the trial court erred in removing Bounds for cause and that Davis therefore requires petitioner's resentencing. But the proper exclusion by means of peremptory challenges of other jurors who might have shared Bounds' views did not exacerbate the prejudice created by her removal, and has no significance to the decision of this case. Witherspoon and its progeny do not restrict the traditional rights of prosecutors to remove peremptorily jurors believed to be unwilling to impose lawful punishment. Pp. 669-672.

BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B-1, and IV, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Part III-B-2, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, post, p. ----. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. ----.

Andru H. Volinsky, for petitioner.

Marvin L. White, Jr., Jackson, Miss., for respondent.

Justice BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B-1, and IV, and an opinion with respect to Part III-B-2, in which Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join.

More than 10 years ago, in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) (per curiam ), this Court on certiorari summarily reversed a judgment of a state court and ruled that when a trial court misapplies Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and excludes from a capital jury a prospective juror who in fact is qualified to serve, a death sentence imposed by

the jury cannot stand.1 This case presents the question whether the Court now should abandon that ruling and, instead, subject an impermissible exclusion to harmless-error review.


In June 1982, petitioner David Randolph Gray was indicted in Harrison County, Miss., on a capital charge for the stabbing death of Ronald Wojcik while engaged in the commission of the felony of kidnapping.2 The trial judge began the jury selection process by assembling the entire venire in the courtroom. He then formed an initial panel for voir dire by calling 12 persons to the jury box. Tr. 193-194. After preliminary questioning by the court regarding prior knowledge of the case and of the parties involved, the prosecutor commenced his examination of the panel. After a member was removed for cause or by the prosecutor's use of a peremptory challenge, another venire member was called to the box for questioning by the prosecutor. When the prosecutor reached the point where he acknowledged that he would accept the full panel as it stood, the voir dire shifted to the defense and petitioner's attorney followed the same procedure. The questioning continued in this alternating fashion, with each side examining those venire members who had been called to the box since its last opportunity to inquire, until the final panel was selected.

The panel members were questioned individually for the most part, but this took place in the presence of the others

in the box as well as in the presence of all prospective jurors in the courtroom waiting to be called. As a result, venire members were able to learn the consequences of different responses. In particular, they learned what response would likely result in their being excluded from the jury. This knowledge caused difficulty during the prosecutor's questioning. He asked each panel member whether he or she had any conscientious scruples against capital punishment and whether he or she could vote to impose a death sentence. Whenever a prospective juror revealed any such scruples or expressed any degree of uncertainty in the ability to cast such a vote, the prosecutor moved to have the panel member excused for cause. In one instance the court granted that motion. Id., at 368. In eight instances, however, the court denied the motion. The prosecutor then used peremptory challenges to remove those eight panel members. App. 3, 5, 6, 9, 12, 13, 15, 16.3 After his denials of these for-cause motions, the judge observed that venire members perhaps were not being forthright in their responses to the prosecutor. He criticized them for expressing insincere hesitation about

the death penalty in order to be excluded from the jury. He admonished them: "Now I don't want nobody telling me that, just to get off the jury. Now, that's not being fair with me." Id., at 16.4

By the time venire member Mrs. H.C. Bounds was called to the jury box, the prosecutor had exercised all 12 of the State's peremptory challenges, see Miss. Code Ann. § 99-17-3 (1972), 4 of which apparently were exercised for reasons unrelated to the panel members' responses to Witherspoon questions. See Tr. 301-302, 381, 390-391. Although the voir dire of member Bounds was somewhat confused, she ultimately stated that she could consider the death penalty in an appropriate case and the judge concluded that Bounds was capable of voting to impose it.5 Evidently de-

ciding that he did not want Bounds on...

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