Pierce v. State

• Decision Date: 13 September 1989
• Docket Number: No. 69777,69777
• Citation: 777 S.W.2d 399
• Parties: Anthony Leroy PIERCE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 399

777 S.W.2d 399

Anthony Leroy PIERCE, Appellant, v. The STATE of Texas, Appellee.

No. 69777.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 13, 1989.

Anthony P. Griffin, Galveston, Mary Conn and Ronald G. Mock, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Roe Morris, Gaynelle Jones, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.

The appellant was convicted of intentionally causing the death of Fred Eugene Johnson during the course of committing and attempting to commit aggravated robbery. Appellant raises twelve points of error. He argues that one venireman was improperly excused for cause based on his bias against imposition of the death penalty. He argues that three other veniremen should have been excused for cause because of their inability to differentiate between "intentional" in the guilt/innocence stage and "deliberate" in the punishment phase. He argues that he should have been allowed to exercise his peremptory challenges retroactively. He argues that an architect's reconstruction of the lineup was erroneously excluded from evidence. He argues that expert testimony concerning the unreliability of eyewitness testimony was improperly excluded. He argues that, on three occasions, evidence concerning a prior misidentification of the appellant was improperly excluded. Finally, he argues that the jury should have been given a special instruction during the punishment phase concerning the use of mitigating evidence. We affirm.

On August 4, 1977, Fred Johnson, the deceased, was working as manager of a Church's Fried Chicken restaurant. Brenda Charles was working as a cook and cashier that night, and Ron Cooks was working as a cook. After 9:00 that night, appellant entered the restaurant, approached the cashier, exhibited a gun, and demanded money from Johnson. Johnson put the money into a Church's chicken box and handed the box to Johnson. Appellant ordered the employees to lie on the floor. As appellant began to leave the restaurant, he dropped the box, spilling the money. He instructed Cooks to pick up the money. After Cooks had done this, appellant returned to the counter and told the deceased that he had been "laying to kill" him, and then shot the deceased. After this, appellant fled the store.

At trial, Charles testified that she recognized the appellant as the man who robbed and killed Johnson. In addition, she testified that she recognized appellant as a person who had been in the restaurant in the two months prior to the offense. Cooks also identified appellant as the man who robbed Johnson. Reginald Sanders, a twelve-year-old boy who observed the robbery through the front window of the store as he was passing by, testified that appellant was the man he saw committing the offense in the store and then running from the restaurant. ¹

In his eighth point of error, appellant argues that the trial judge erred in excusing venireperson Helen Scott for cause. Appellant contends that Ms. Scott equivocated in her position that she could not answer all of the special issues "yes" because of her moral opposition to the death penalty. The State responds that Ms. Scott conceded that a person who does wrong should be punished, but maintains that she consistently expressed the view that she could not answer the special issues in such a manner that the death penalty would be imposed.

The voir dire examination began with the trial judge asking a few questions concerning the venireperson's feelings about the death penalty and how they would affect her ability to serve as a juror.

THE COURT: Now, if you are a juror in a capital murder case and in the first part of the trial you had found a person guilty of the offense of capital murder and after listening to all of the evidence in the second part of trial as well you were now convinced by all of the evidence beyond a reasonable doubt that each one of those questions [special issues] should be answered "yes," would you answer those questions "yes" knowing that it would result in the imposition of the death sentence?

MS. SCOTT: Do you really want the truth?

THE COURT: Yes, ma'am.

MS. SCOTT: I don't think I could.

During the State's examination of Ms. Scott, she acknowledged that there might be circumstances which would merit the death penalty, but she stressed that she would not want to impose it.

Q: [By MS. JONES, Prosecutor]: Okay. So the question then is whether you have conscious or moral scruples against [the death penalty], you're saying to me that you couldn't do it, therefore, you do have such scruples against the death penalty in a proper case. You're saying no, you couldn't do it?

A: Okay. But in other words, if it had to be done and I didn't have to do it, you know, I still say if you do wrong you should be punished; but I just don't want to be involved in it.

* * * * * *

Q: Now, when you say you have these feeling against the death penalty, I want to find out if that would apply to every kind of capital murder case. If you had a situation, as far as your own ability to get involved in it, if you had a situation where you had the most brutal capital murder case you could ever think about, and, Mrs. Scott, I'm not talking about anything in this case. Now, we can't talk about this case here. But let's say you had a situation w[h]ere [sic] a man has gone out and you learn that he has killed, went to a nursery school, went in there and just went wild and just killed every single baby in the nursery school.

Now, that man, you find out later, had killed some other people before, gone to the pen, and gotten out and then robbed somebody and went to the pen and gotten out and now he's out killing all these babies. He could be charged with a capital murder. If you were on the jury coming in involved in that case in light of your own personal feelings about capital murder, would you not--would you be able to sit on a jury in that case?

A: I know that's wrong and I think I understand what you're talking about, but it's just something about taking a person's life that it had been taught to me all my life and I just can't do it.

Eventually, the prosecutor asked Ms. Scott about how her feelings would affect her service as a juror.

Q: [By MS. JONES: A "yes" answer by all 12 jurors on both or all of the [special issues] means death as far as the Judge has no alternative and that's how the decision is made far as what the jury's involvement is. Do you understand that?

A: Huh, huh.

Q: Now, you've told us of your very strong beliefs on the death penalty and I'm asking you now that if you were serving--let's say you ended up for some reason on a jury on the capital murder case and you got to the punishment stage. You're given these questions to look at. Would you say to yourself because of your own opinions and beliefs that I don't care what the State has brought on these questions and, of course, the State has to try to convince you beyond a reasonable doubt to answer those questions yes. And let's say the State has brought evidence into here that really convinces you that those questions should be yes. Would you say to yourself, "If I say yes, he's going to get death. I'm morally opposed to it, consciously opposed to it, so I'm going to say no regardless of the situation just so he does not get death." Would you do that?

A: Yes, I would.

Q: Okay. Would you do that in every situation you can think of, every possible capital murder case, the most brutal one, for example, the man with the babies and so forth?

A: Yes.

Next, the prosecutor extensively explained the second special issue to Ms. Scott. After Ms. Scott said that she felt that she could answer the question in the abstract, the prosecutor put the question into terms of a capital case.

A: [By MS. JONES:] What I mean by "I couldn't live with my conscience," I mean just like I said. I mean that if a person--you can pretty near look at some people and talk to some people and tell if they're going to change or if there's anything about them that will change. Then if they're not going to change, well, it's just no hope for them.

Q: My question is a little more narrow than that. And if you feel it is yes and you know it's yes, but you know that that yes will mean that the Judge will sentence him to death, will you go ahead and say yes or will you not?

MR. GRIFFIN [Defense attorney]: Objection. Giving her--leading her toward the answer and also it is repetitive. We've gone over it four times now.

THE COURT: Overruled.

Q: [By MS. JONES:] You can answer?

A: I don't know, really.

THE COURT: Ma'am, I'm sorry to do this, but the "I don't know," the "I'm not sure," the "I think," are what is giving us problems. Please answer yes or not. Now, do you remember the question?

MS. SCOTT: Yes, I remember the question. I would say no.

At this point, the State challenged Ms. Scott for cause based on her inability to answer the special issues. The judge withheld ruling until the appellant examined the venireperson.

Next, appellant's attorney attempted to rehabilitate Ms. Scott. He stressed the civic importance of serving as a juror and the fact that the jurors serve under oath to follow the law. Neither of these arguments caused Ms. Scott to retreat from her position that she could not answer the special issues in such a way that a death sentence would be imposed. Appellant's attorney also presented a hypothetical case in which the facts of the capital offense were brutal and the defendant had a terrible criminal record. Not even this hypothetical situation could persuade Ms. Scott that she could answer all of the special issues in the...