State v. Pace
| Decision Date | 30 April 1969 |
| Docket Number | No. 8579,8579 |
| Citation | 456 P.2d 197,80 N.M. 364,1969 NMSC 55 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Anthony William PACE, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
In this appeal from a judgment and sentence of death following conviction of murder in the first degree, appellant argues six points of claimed reversible error in the trial.
Although presented by permission in a supplemental brief, we first consider point VI wherein it is argued that the procedure followed in qualifying the jury amounted to systematic exclusion of jurors who expressed scruples against the death penalty, resulting in a denial of due process under the doctrine of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
The record discloses that ten prospective jurors were excused for cause. Of these, appellant asserts that seven were excused because of expressed religious, conscientious or moral scruples, and that this fact, plus a comment by the court during the voir dire that 'the District Attorney is trying to qualify you for capital punishment which he has a right to do,' set the tone for systematic exclusion of prospective jurors having such scruples against the death penalty.
Our examination of the record discloses that with two exceptions all those excluded, upon being questioned if they opposed capital punishment under any circumstances, stated clearly that they were so opposed to the death penalty they could not conscientiously convict, knowing that a death sentence would be imposed, or that they would never consider voting for the death penalty. In no instance did appellant object to the sustaining of the challenge. However, as to two of the prospective jurors, the situation was somewhat different. The first of these, a Mr. Sandoval, was questioned as follows:
The second was a Mr. Vigil, whose brief examination proceeded as follows:
We see in the excusing of these latter two prospective jurors, a possible failure to interrogate them to determine definitely that they would not convict knowing the death penalty would be imposed. However, counsel for appellant had the reasonsibility to do this if he could and desired to try, and the court in no way prevented his doing so but, to the contrary, invited such an effort.
Although we have no decisions on the specific subject, we have held that where a prospective juror states that he has an opinion as to the guilt or innocence of a defendant based upon something he had heard or read, he can nevertheless qualify as a juror if he asserts that he could and would lay aside any such views, and reach a decision solely on the law and evidence as presented in the trial. State v. Burkett, 30 N.M. 382, 234 P. 681 (1925); State v. Anderson, 24 N.M. 360, 174 P. 215 (1918); State v. Rodriguez,23 N.M. 156, 167 P. 426 (1917), L.R.A. 1918A, 1016. In State v. McFall,67 N.M. 260, 263, 354 P.2d 547 (1960), we detailed the requirements of an impartial jury in the following language:
* * *'
It is clear from the foregoing, and to our knowledge it has been the uniform practice followed in qualifying jurors for service in a particular case, that an effort be made to establish if the venireman could enter the jury box with an open mind, freed of all preconceived bias or prejudice, regardless of its source, and thus render a fair and impartial verdict between the state and the defendant. This principle is as applicable to expressed conscientious scruples against the death penalty as it is to announced opinions based on out of court hearsay. As a matter of fact, in the instant case, as to one prospective juror (Mr. Petrolino Vigil), although he stated he was We have no statute such as was present in Illinois and held to result in a deprivation of constitutional rights when interpreted and applied as was done in Witherspoon v. Illinois, supra. Our practice has always approximated the requirements as laid down in that case, and there was no departure evident here. By virtue of this fact we do not consider applicable In re Anderson, Cal., 447 P.2d 117 (1968), wherein the rule of Witherspoon was applied to reverse a conviction in a case tried before it had been announced and where a different rule of disqualification was applied. Our procedure more nearly compares with that followed in New Jersey and held in State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968), not to conflict with the decision in Witherspoon, supra. Also see Veney v. State, Md.App., 246 A.2d 568 (1968).
opposed to capital punishment, he further answered, 'If the evidence is there, well, I guess I would vote for it (capital punishment), * * *' and then stated that if faced with it, he would '* * * live up to it and do it if the facts and law required it.' There was no challenge for cause after this inquiry.
The facts here are in no sense comparable to those considered in Witherspoon v. Illinois, supra, where it was clear that the court understood the statute to require that all veniremen having conscientious scruples must be excused. This was done without questioning them at any length as to whether apart from their feelings against the death penalty, they would convict in a proper case if convinced of the defendant's guilt under the law as given by the court. Of 47 veniremen excused upon challenge for cause, only 5 'stated that under no circumstances would they vote to impose capital punishment.' The situation was not remotely comparable to that here present, where the worst than can be said is that two prospective jurors were excused without any real effort by appellant to qualify them after they expressed doubts or a question concerning their feelings on the subject. It is implicit in the court's inquiry of appellant's counsel as to whether they wanted to examine the prospective jurors, or opposed the challenges, that if it could have been demonstrated that regardless of the feelings of the venireman, he would convict in a proper case, the challenges would have been overruled. Nothing more is required. We quote from Witherspoon v. Illinois, supra:
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