Hunter v. State

• Decision Date: 18 December 1972
• Citation: 496 S.W.2d 900
• Parties: Charles HUNTER et al., Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 900

496 S.W.2d 900

Charles HUNTER et al., Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

Dec. 18, 1972.

Albert H. Boyd, Memphis, for Charles Hunter and Franklin Wright.

Russell X. Thompson, Memphis, for Ulous Harris, Earl Foster and Garfield Huston.

David M. Pack, Atty. Gen., State of Tennessee, Bart C. Durham, Asst. Atty. Gen., Nashville, Phil M. Canale, Jr., Dist Atty. Gen., Memphis, for defendant in error.

OPINION

DYER, Chief Justice.

Plaintiffs in error were convicted of the offense of rape in the Criminal Court of Shelby County, Division III. Punishment for each plaintiff in error was fixed at death by electrocution. From the adverse judgments of the trial court, plaintiffs in error perfected an appeal to this Court. We affirmed the judgments of conviction. Hunter v. State (1969) 222 Tenn. 672, 440 S.W.2d 1. Thereafter, the Supreme Court of the United States vacated the judgments and remanded the cause to this Court for consideration of plaintiffs' in error contention that they were denied a fair and impartial jury to try the issue of punishment because veniremen who expressed reservations and conscientious objections about imposing the death penalty were excluded from the jury. Hunter v. Tennessee (1971) 403 U.S. 711, 91 S.Ct. 2285, 29 L.Ed.2d 820.

In the course of this opinion the parties will be designated as they appeared in the trial court; that is, Charles Hunter, Franklin Wright, Ulous Harris, Earl Foster, and Garfield Huston, as defendants, and State of Tennessee, as State.

This cause was tried during January and February of 1966. On February 17, 1966, the jury found defendants guilty of rape and fixed punishment at death. After motions for new trial were considered and overruled by the trial court, defendants seasonably perfected an appeal to this Court.

While the cause was pending in this Court, the Federal Supreme Court announced its decision in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The Witherspoon case prohibits the imposition of a sentence of death

. . . if the jury that imposed or recommended it was chosen by excluding venirement for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

It is said that a jury so constituted falls 'woefully short of that impartiality' required under the Sixth and Fourteenth Amendments.

When the cause was originally before this Court, defendants by way of supplemental briefs raised the contention that the jury that assessed their punishment was selected in violation of the standards set forth in Witherspoon v. Illinois, Supra. Our review of an alleged Witherspoon violation was precluded at the time for the reason that the voir dire examination had not been made a part of the bill of exceptions.

By Chapter 475 of the Public Acts of 1970 the General Assembly amended T.C.A. § 27--111 to empower appellate courts 'to order the filing of (a late) bill of exceptions' in criminal cases. Dailey v. State (1971) Tenn., 470 S.W.2d 608. Subsequent to the remand of this cause from the Federal Supreme Court, the voir dire examination has been transcribed, authenticated, and certified to this Court.

There are two distinct questions presented in the case at bar. They are: (1) were venirement excluded from the jury for cause solely for the reason that they voiced general objections to capital punishment or religious or conscientious scruples to imposing the death penalty; and (2) if a violation of the principles announced in Witherspoon is found, does that require reversal of the convictions as opposed to a mere re-determination of punishment alone.

In reference to this first question presented, we are constrained to conclude that the jury that assessed the punishment of each defendant was selected by excluding for cause veniremen who expressed general reservations about imposing the death penalty. Some of the prospective jurors were correctly challenged for cause because they stated they were inalterably opposed to capital punishment and could never vote to impose the same irrespective of the evidence adduced at trial. However, a review of the record convinces us that the jury lacked the requisite impartiality to assess punishment for the reason that numerous veniremen who expressed religious or conscientious scruples against capital punishment and numerous others who voiced general objections to the same were routinely excluded from the jury.

Having found a Witherspoon violation in the instant case, we must next determine whether or not this error requires reversal of the judgments of conviction or merely a remand for a reassessment of punishment. Defendants assert that a jury selected in violation of the Witherspoon standards is biased not only as to punishment but also on the issue of guilt or innocence.

We are unable to agree with defendants' contention. The exclusion of prospective jurors upon grounds held impermissible in Witherspoon v. Illinois, Supra, does not in and of itself affect the validity of the judgments of conviction. As was said in the Witherspoon opinion, 'we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.' In Bumper v. North Carolina (1968) 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, the Supreme Court of the United States considered an identical contention and said:

In Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Turner v. State of Louisiana, 379 U.S. 466, 471--473, 85 S.Ct. 546, 548--550, 13 L.Ed.2d 424; Irvin v. Dowd, 366 U.S. 717, 722--723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751. We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily 'prosecution prone,' and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis.

In this case we find no evidence the jury was so 'prosecution prone' that it was necessarily biased on the issue of guilt or innocence. In fact, this same jury which recommended the death penalty for these five defendants also acquitted two other of the defendants.

We are further of the opinion that there are no constitutional or statutory prohibitions in this State for retrial on the issue of punishment alone. The rule is well established that the constitutional right of trial by jury does not include the right...