State v. Aiken, s. 38592

• Decision Date: 06 March 1969
• Docket Number: 38629,Nos. 38592,s. 38592
• Citation: 75 Wn.2d 421,452 P.2d 232
• Parties: The STATE of Washington, Respondent, v. Arthur Nathaniel AIKEN, Appellant. The STATE of Washington, Respondent, v. Antonio Nathaniel WHEAT, Appellant.
• Court: Washington Supreme Court

Page 421

75 Wn.2d 421

452 P.2d 232

The STATE of Washington, Respondent, v. Arthur Nathaniel AIKEN, Appellant.

The STATE of Washington, Respondent, v. Antonio Nathaniel WHEAT, Appellant.

Nos. 38592, 38629.

Supreme Court of Washington, En Banc.

March 6, 1969.

Rehearing Denied May 16, 1969.

Robert S. Egger, and Anthony Savage, Jr., Seattle, for Aiken.

Philip L. Burton, Seattle, for Wheat.

Charles O. Carroll, Pros. Atty., William L. Kinzel, Deputy Prosecuting Atty., Seattle, for respondent.

Douglas Shaw Palmer, Seattle, amicus curiae.

HAMILTON, Judge.

The defendants, Arthur Nathaniel Aiken and Antonio Nathaniel Wheat, were jointly charged by amended information with three separate and distinct counts of murder in the first degree, allegedly committed with a premeditated design to effect death or while the defendants were jointly engaged in committing, attempting to commit, or withdrawing from the scene of a robbery. Appropriate pleas of not guilty were entered. Motions for separate trials were interposed by the respective defendants and denied. Trial was duly held before a jury, which returned separate verdicts of guilty as to each defendant and as to each count. The respective verdicts were accompanied in each instance by the jury's recommendation, in answer to a special interrogatory as to each count, that the death penalty be imposed. Judgment and sentence as to each defendant and each count was entered upon the verdicts and timely notices of appeal were given.

This court affirmed the convictions by opinion in State v. Aiken, 72 Wash.Dec.2d 306, 434 P.2d 10 (1967). Defendants thereafter petitioned the United States Supreme Court for review by way of certiorari. The United States Supreme Court, on June 17, 1968, granted the respective petitions, vacated the judgments of this court, and remanded the case for further consideration by this court in the light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See Wheat v. Washington, 392 U.S. 652, 88 S.Ct. 2302, 20 L.Ed.2d 1357 (1968).

This court called for briefs from counsel for the defendants upon the issues raised by the remand, and set the causes down for supplementary oral argument on September 23, 1968.

In approaching the issues raised by the remand, we consider first the impact of Witherspoon v. Illinois, Supra, and secondly the applicability of Bruton v. United States, Supra, as such relate to the trial of the defendants, and the results of that trial. The circumstances surrounding the crimes of which defendants were convicted are set forth in detail in our former opinion. We will allude herein only to such facts as are necessary to an understanding of our rulings.

In Witherspoon v. Illinois, Supra, the United States Supreme Court had before it a case wherein an Illinois jury had found a defendant guilty of murder and imposed the penalty of death. The jury had been selected from a panel of veniremen from which had been excluded on voir dire examination some 47 prospective jurors who expressed in varying degrees opposition to capital punishment. Only five of the 47 veniremen stated that under no circumstances would they vote to impose the death penalty. The remaining 42 either did not so state or were not asked, and were accordingly excused upon the broad base of their expressed though varying reservations about capital punishment. Holding that the jury selected from the remainder of the panel of veniremen did not, upon the issue of penalty, represent an impartial jury, within the contemplation of the sixth and fourteenth amendments to the United States Constitution, the United States Supreme Court sustained the conviction but set aside the penalty verdict. In so doing the court stated, at 520, 88 S.Ct. at 1776:

If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply 'neutral' with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. * * *

* * *. 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.

The court further amplified its holding in footnote 21 of the opinion, wherein it observed, at 522, 88 S.Ct. at 1777:

(N)othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that 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, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt. Nor does the decision in this case affect the validity of any sentence Other than one of death. Nor, finally, does today's holding render invalid the Conviction, as opposed to the Sentence, in this or any other case.

Our inquiry, then, if we are to determine the effect of the Witherspoon doctrine upon the instant case, must be directed to the basis upon which certain members of the panel of prospective jurors drawn for the trial were excused for cause.

In this state, first degree murder, including felony murder, is punishable by life imprisonment, unless the jury finds, by special verdict, that the punishment shall be death. RCW 9.48.030. ¹ Thus, a jury in a first degree murder trial may be called upon to make two determinations, (1) the determination of guilt or innocence, and (2) the determination of penalty if the first finding is one of guilt. On the voir dire examination of prospective jurors, our pertinent statutes provide with respect to challenges for cause:

Challenges for cause shall be allowed for such cause as the court may, in its discretion, deem sufficient, having reference to the causes of challenge prescribed in civil cases, as far as they may be applicable, and to the substantial rights of the defendant. RCW 10.49.040.

No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense. RCW 10.49.050.

These statutes were first enacted in the Code of 1881, and became a part of the law of this state at a time when the penalty for first degree murder was death, subject only to pardon or commutation by the governor. Code of 1881, § 786; Laws of 1891, ch. 69, § 1. Since that time, this state first abolished the death penalty and substituted life imprisonment (Laws of 1913, ch. 167, § 1), and then reinstated it subject to imposition by special verdict of the jury (Laws of 1919, ch. 112, § 1, now codified as RCW 9.48.030). Neither RCW 10.49.040 or 10.49.050, above referred to, have been significantly amended since their original enactment.

Against this statutory history and background, we have consistently held that a prospective juror who, on voir dire examination, revealed a conviction concerning the death penalty which would prohibit and preclude him from either making a finding of guilt in a capital case or imposing a death penalty under any circumstances was subject to challenge for cause pursuant to RCW 10.49.050 or by virtue of the general rule reflected in RCW 10.49.040. State v. Riley, 126 Wash. 256, 218 P. 238 (1923); State v. Leuch, 198 Wash. 331, 88 P.2d 440 (1939); State v. Smith, 74 Wash.Dec.2d 749,446 P.2d 571 (1968). Thus, we have heretofore interpreted and applied the pertinent challenges for cause statutes in complete harmony with the Witherspoon doctrine.

In the instant matter, 94 prospective jurors were called and questioned on voir dire before a jury of 12 and one alternate was finally made up. During the course of the voir dire examination 25 veniremen expressed reservations about imposing the death penalty. Of these 25, 19 were excused for cause from serving upon the jury by virtue of their views with respect to capital punishment. The remaining six were either excused for other reasons or because of peremptory challenge.

Throughout the voir dire examination of the jurors called to the jury box, and in the presence of prospective jurors seated in the courtroom, the trial judge by his questions and rulings and trial counsel by their interrogation repeatedly made it abundantly clear to the veniremen that (a) the defendants were charged with murder in the first degree; (b) the jury would be called upon to determine guilt or innocence, and, upon a finding of guilt, to determine penalty; (c) the death penalty was not mandatory, but could only be imposed as a result of an affirmative answer by the jury to a special interrogatory; (d) life imprisonment sentences on separate counts could be made to run consecutively; and (e) a prospective juror who held convictions regarding the death penalty which would prohibit that juror from imposing such a penalty under any circumstances would be excused for cause, but that one who, despite his or her reservations, could vote for such a penalty if circumstances warranted would not be so excused.

Somewhat typical of the preliminary question asked virtually every prospective juror by the trial judge, as a prelude to voir dire examination by respective counsel, is the following:

Then I would ask you that if you sat as a juror in this case, and...