Pierson v. State
| Decision Date | 17 September 1980 |
| Docket Number | No. 63437,63437 |
| Citation | 614 S.W.2d 102 |
| Parties | James Willard PIERSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for a capital murder. Punishment is death.
Appellant raises fifteen grounds of error. We deal only with his contentions that two prospective jurors were excused for cause in violation of his right to an impartial jury and due process of law under the Sixth and Fourteenth Amendments. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Because the record reflects that both jurors were improperly excused, we reverse appellant's conviction.
Prospective juror William Graham initially testified that he was opposed to the death penalty if he personally had to impose the penalty. The prosecutor then explained to Graham that the jury members did not assess the death penalty, but only answered three questions. If the jury answered all three questions "yes," the trial judge would assess punishment at death; if the jury answered any of the questions "no," the judge would assess punishment of life imprisonment. 1
The prosecutor then informed Graham that in order to serve as a juror he would have to state under oath that the mandatory penalty of death or imprisonment for life would not affect his deliberation on any issue of fact. See V.T.C.A. Penal Code, § 12.31(b). The prosecutor inquired whether Graham could take the oath knowing that if the jury affirmatively answered the three special issues appellant would be sentenced to death. Graham responded:
A Are these the questions over here?
A Right.
A Can I read them?
Q Sure.
A I don't see why I would have any difficulty answering those questions yes.
A Well, in other words, you are saying that you can answer them yes knowing that when you returned a yes answer to each of those questions, that mandatorily the Defendant is going to receive the death sentence.
A What I am saying is that if you successfully prove your case, I may very well have no alternative but to answer those questions yes.
A Well, the alternative would come in, do you see, in each of those questions, the yes answer would have to be beyond a reasonable doubt, do you see, from the evidence. Now, jurors will have a great deal of latitude. Sometimes people because of their own personal feelings or prejudice, bias and interest in what is going to happen, can sway them one way or another, even subconsciously, do you see. That's where the oath comes in. You are saying that the mandatory sentence of life or death will not affect your deliberations on any finding of fact at all.
Now, if I understood you right when you started, you said you would not return a verdict that would result in a death sentence; is that right?
A I said I would be opposed to such a thing, yes. However, I don't want to be put in that position. That's what I said.
A Now, if you feel that way, and you don't want to be put in that position, there is no one going to force you to take this oath. That's exactly why I asked you that question.
Now, if you take that oath, now, you are bound by law and oath to God to do exactly what you said you would do. And if you get into a tight situation here, you haven't heard the evidence
A Right.
Q But you know full well that a yes answer to each of those three questions is going to result in a death sentence, and you are going to know that it was a direct result of what you personally said and you put yourself in a position where you might be required to do the very thing that you say you don't want to do. And at that time I am suggesting to you that it might well affect your deliberations to some extent, because of your deep-seeded (sic) personal feelings there.
A I understand. That's why I wouldn't want to take the oath.
A That's what I am saying. If you have this feeling at this time, you haven't even heard any evidence, I am just saying to you I wouldn't think you would want to take that oath to not even know what kind of situation you are taking yourself in, because you have a strong, apparently a very strong personal feeling against returning a verdict that will result in a death sentence; is that right?
A Well, my reason is strictly selfish. I'm not opposed to death penalty if the crime warrants it. I do not want to be the one that would do it, and then later find that I have made some grievous error.
Q Well, but sure, there are a lot of people that will say I am not opposed to the death penalty if someone else does it.
A Yeah.
Q But that isn't we are entitled we who are representing the people here in Dallas County, State of Texas, all of those twelve persons on that jury that from start to finish will say "If you show it to me I will have no qualms at all about following the law "
Q (By Mr. Whaley) What I am saying is, we are entitled to twelve jurors that know at the outset that they can do without any question what the oath says, not any question in their mind going in. And I have a feeling from talking to you that yes, you would have a considerable reservation about returning a verdict that you knew was going to result in the death sentence. And that's going to be with you the rest of your life.
A Well, that's my feeling. I feel that I would be put in an untenable position, because by the nature of my job, I prosecuted maybe thirty people in the course of my work. I have gone to Grand Juries, arraignments, worked closely with the U.S. Attorneys, and in no instance did I ever have a Defendant that was not guilty. The problem was proving it. So therefore, if you have a good case, and you prove your case, I would have no choice but to answer yes to these questions. And therein lies my problem, because I would be opposed to sending someone to their death.
A That's exactly what we are talking about, so your choice comes at this moment as to whether or not you would take this oath. If you say you wouldn't take that oath
A I won't take the oath.
On examination by defense counsel, Graham explained why he could not swear that his deliberation on the facts would not be affected by the mandatory penalty of death or life imprisonment:
Well, I am saying that it's quite obvious if you have always had this in the back of your mind, you are going to take a much harder look at the evidence, and look for more reasonable doubt than you would otherwise....
The state challenged Graham on the basis that he could not take the oath required by § 12.31(b), supra. The court sustained the state's challenge. Referring the court to his pre-trial motions, appellant objected that under the holding of Witherspoon v. Illinois, supra, Graham should not have been excluded. Appellant also objected that the § 12.31(b) oath unfairly restricted the jury's consideration of the three special issues set forth in Art. 37.071(b), supra. The objection was overruled.
Prospective juror Russell Wayne Massey testified in response to questions by the prosecutor that he did not think the death penalty was an appropriate penalty for crime. Massey further testified that he personally would not vote for the death penalty. Defense counsel explained to Massey that under the Texas procedure the jury did not itself impose the death penalty. Counsel then explained the § 12.31(b) oath to Massey. Massey initially stated that he could take the oath, then wavered:
Because I want to answer (the special issues) honestly, of course, and I would like to go by strictly the facts and answer all the facts honestly. And if everything by the facts came to the fact that I have to answer all three questions yes, I don't know if I want to take that oath.
Massey ultimately took the position that his personal feelings concerning the death penalty would not cause him to distort or disregard the facts of the case:
I would not let my personal feelings get involved to where I would, if I believed all three questions to be yes, I would say no.
Q (By Mr. Evans (defense counsel)) Assuming you are on a jury in a capital case, I'm going to ask you one more time: If you would let the mandatory penalty of death or imprisonment for life affect your deliberations on any issue of fact in a case.
A If I was on the jury?
Q If, yes.
A Then I would have to put my personal feelings aside and go strictly by the facts, if I was on the jury.
Q And could you and would you do that?
A Well, see now, I've never been in that position, I really can't honestly say, but I think yes, I would go strictly by the facts and go strictly by the rules.
Q Well, what you are telling us is you would rather not be on the jury in the first place.
A Well, if by going strictly by the facts and strictly by the rules and going honestly to it, I could give a man the death sentence, yes, I do not want to be on the jury. I really don't know what to say.
The state's challenge for cause due to Massey's inability to take the § 12.31(b) oath was sustained. Appellant objected that the exclusion of Massey was contrary to the holding of Witherspoon, and that Massey appeared able to put aside his personal feelings and follow the law. The objection was overruled.
The United States Supreme Court held in Witherspoon that "a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death." 391 U.S. at 521, 88 S.Ct. at 1776. Specifically, the Court held 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. (footnote omitted)
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