Pittman v. State

• Decision Date: 24 July 1968
• Docket Number: No. 41393,41393
• Citation: 434 S.W.2d 352
• Parties: Melvin Stuart PITTMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 352

434 S.W.2d 352

Melvin Stuart PITTMAN, Appellant, v. The STATE of Texas, Appellee.

No. 41393.

Court of Criminal Appeals of Texas.

July 24, 1968.

Rehearing Denied Oct. 30, 1968.

Second Rehearing Denied Dec. 11, 1968.

Charles Dickens, (Court Appointed on Appeal), Dawson H. Davis, Fort Worth, (Court Appointed on Appeal), for appellant.

Frank Coffey, Dist. Atty., R. J. Adcock, Charles D. Butts and R. W. Crampton, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is murder; the punishment, death.

We are squarely confronted with the question of whether the exclusion by the trial court of prospective jurors who had conscientious scruples against the infliction of death as a punishment for crime deprived appellant of his constitutional right to a trial by a fair and impartial jury. This is the first time this Court has been called upon to pass upon such a ground of error since the decision of the United States Supreme Court in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, upon which appellant relies, and which, of course, is to be applied retroactively. ¹

In Witherspoon the Court held that due process voided a death sentence imposed by a jury from which were excluded all persons expressing general objections to or conscientious or religious scruples against capital punishment.

In view of a vast amount of misinformation disseminated, it is perhaps important that it be established at the outset what Witherspoon did not hold. It did not outlaw the death penalty as a punishment for crime. It did not hold that the imposition of death under the Illinois statute involved was unconstitutional, ² nor did it hold that the death penalty constitutes cruel and unusual punishment offending the Eighth Amendment nor, as noted by Mr. Justice White in his dissenting opinion, does the decision prohibit a State Legislature from specifying only death as the punishment for certain crimes, so that the penalty is imposed automatically upon a finding of guilt, with no discretion in judge or jury.

The majority of the Court made clear their ruling by stating:

'* * * Specifically, we hold 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. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

'Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.'

The holding is clarified to some extent by Mr. Justice Stewart, who delivered the majority's opinion, when he wrote:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.' See also footnote 21 of said majority opinion.

Mr. Justice Black, dissenting, characterized the holding as 'very ambiguous' and further stated

'* * * For as I read the opinion, the new requirement placed upon the States is that they cease asking prospective jurors whether they have 'conscientious or religious scruples against the infliction of the death penalty,' but instead ask whether 'they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.' (See majority opinion, n. 21).'

In Texas 'conscientious scruples' was a cause for challenge prior to the enactment of the Code. White v. State, 16 Tex. 206, 207 (1856); Burrell v. State, 18 Tex. 713 (1857); Hyde v. State, 16 Tex. 445, 446; 35 Juris.2d Jury, Sec. 198.

Prior to the adoption of the 1965 Code of Criminal Procedure the accused as well as the State had the right in capital cases to challenge for cause a juror who had conscientious scruples concerning infliction of the death penalty. Taylor v. State, 131 Tex.Cr.R. 350, 99 S.W.2d 609; Jordan v. State, 154 Tex.Cr.R. 217, 226 S.W.2d 449; Prewitt v. State, 145 Tex.Cr.R. 202, 167 S.W.2d 194. Cf. Villereal v. State, Tex.Cr.App., 61 S.W. 715. Further, the prosecutor in capital cases was permitted to accept some jurors who had stated they had 'conscientious scruples' but challenge others on this same ground. Merkel v. State, 75 Tex.Cr.R. 551, 171 S.W. 738; Anderson v. State, 129 Tex.Cr.App. 586, 90 S.W.2d 564. Such practice and procedure prevailed in every capital felony because death was a possible punishment. Two innovations in this area were wrought by the 1965 Code of Criminal Procedure and the 1967 amendments thereto. First, the State must give 15 days written notice prior to trial in any capital case that it intends to seek the death penalty. When the State makes known by written notice that it will not seek the death penalty, the defendant may enter a plea before the court, waive trial by jury and under no circumstances in such case may the death penalty be imposed. Article 1.14, Vernon's Ann.C.C.P., as amended (Acts 1967, 60th Leg., p. 1733, ch. 659, Sec. 1, eff. Aug. 28, 1967). Second, challenges for cause were divided into three groups: (a) those that either the State or Defense could make (b) those only the State could make, and (c) those only the Defense could make. Article 35.16, V.A.C.C.P. Under this division only the State may now challenge a juror for the reason that he has conscientious scruples in regard to the infliction of death as punishment. Article 35.16, Sec. (b)(1), supra. These changes mean that only in capital cases where the State has announced by written notice that it will seek capital punishment does 'conscientious scruples' come into play.

Further attention is directed to the right of the State to challenge for cause any juror who has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. Article 35.16(b) (3), V.A.C.C.P. The defense has a corresponding right. Article 35.16(c)(2), V.A.C.C.P. See also former Article 616, V.A.C.C.P. 1925.

It has long been the traditional practice in Texas, before and after the effective date of the 1965 Code, not to excuse a juror in capital cases who simply stated he had conscientious scruples against the death penalty but to interrogate such juror further to determine if this means that he or she could never vote for the death penalty. The challenge for cause on this ground has always been understood to mean that because of such scruples the juror could never vote to inflict the death penalty in any case regardless of the facts or circumstances. Until this appeared the challenge for cause was not sustainable. Such practice squares with the requirements of Witherspoon.

Normally, the prosecutor will clearly establish the juror's disqualification on this ground before challenging for fear that the juror may be re-qualified upon further interrogation and explanation by the defense or the court (See also Article 35.18, (617) V.A.C.C.P.), and then he will be confronted with the choice of accepting a juror who may have been offended by the premature challenge or unnecessarily using a peremptory challenge.

As earlier noted, prior to the 1965 Code of Criminal Procedure both parties could use the 'conscientious scruples' challenge for cause, and neither side wanted the other to have a 'windfall' without clearly determining that the juror's scruples were such that he would automatically vote against capital punishment regardless of the facts. Such factor undoubtedly contributed to the growth of the traditional practice in this state.

Unlike the Texas statute or practice, the Illinois statute involved in Witherspoon provided:

'In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.'

The jury in the case at bar was chosen or selected in the traditional Texas manner. Unlike Witherspoon, there was no effort to sweep from the jury panel all 'conscientious objectors' in rapid succession without any effort to find out 'whether their scruples would invariably compel them to vote against capital punishment.' Except for the few members excused by agreement, the jury panel was examined separate and apart as required upon request by statute (Art. 35.17, V.A.C.C.P. ³). Out of the 126 prospective jurors examined, the record reveals 42 ⁴ who were excused after stating they had conscientious scruples against the infliction of death as a punishment. However, as we read the 827 pages of the voir dire examination, 38 of these 42 prospective jurors clearly stated in addition that they could never vote to impose the death penalty in any case or could not conceive or visualize any facts or circumstances which would cause them to vote for the death penalty or feel that it was justified. The court's action in sustaining the State's challenge for cause to these members of the panel is clearly supported by the Witherspoon decision. One juror, Trudy Wilmoth, (No. 66) was excused without further interrogation after she testified she had 'conscientious scruples' against the death penalty. She had previously stated, however, the she knew the Lairds, a husband and wife for whose murders appellant...