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BUSH v. STATE12/1/1995
nder what circumstances would you feel like you had to?
"W.S.: Well, —
"MR. GRADDICK: You just don't know?
"W.S.: I just don't know.
"MR. GRADDICK: If you were given a choice between life without parole and capital punishment, would you automatically choose one over the other?
"W.S.: Uh huh, life without parole.
"MR. GRADDICK: Life without parole?
"W.S.: Uh huh.
"MR. GRADDICK: Even if the Judge charged you that under certain circumstances if you believe the evidence to be that you would have the right to sentence the person to die you would choose life without parole?
"W.S.: Yes, I would.
". . . .
"MR. GLASSROTH: [W.S.], there are some crimes that you can think of that are so terrible that you can conceivably see yourself imposing the sentence of death if given a choice?
"W.S.: Well, I just don't believe in taking another person's life."
"The standard for determining whether a prospective juror is disqualified from serving in a death penalty case is whether the prospective juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.' Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)."
Carroll v. State, 599 So.2d 1253, 1258 (Ala. Cr. App. 1992), aff'd, 627 So.2d 874 (Ala. 1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994).
"The Eleventh Circuit Court of Appeals held in 1983 in McCorquodale v. Balkcom, 721 F.2d 1493 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984), that a prospective juror who responded to the death penalty questions, 'I don't think I could do it. I really don't,' has made it sufficiently clear that she could not impose the death penalty regardless of the evidence. . . .
"The Fifth Circuit in Martin v. Maggio, 711 F.2d 1273 (5th Cir. 1983), even held that the following equivocal responses would establish the necessary predicate for disqualification: 'I don't know if I would vote for the death penalty.' and 'I don't know if I could do it.' These are all euphemistic expressions of 'no.' "
Nichols v. State, 624 So.2d 1328, 1336 (Ala. Cr. App. 1992) (quoting Watkins v. State, 509 So.2d 1071, 1073-74 (Ala. Cr. App. 1986), aff'd, 509 So.2d 1074 (Ala. 1987), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1988)).
It is apparent from W.S.'s responses that she did not believe in the death penalty and that she would have automatically chosen a sentence of life imprisonment without the possibility of parole over a sentence of death. Her responses showed that her views would have substantially impaired the performance of her duties as a juror. We find that the trial court did not err in granting the state's challenge for cause as to this venireperson.
In footnote 75 to his brief, the appellant raises the same arguments regarding venirepersons J.B., A.K., and D.H. We have reviewed the responses of these three venirepersons and, likewise, conclude that their views on the death penalty would have impaired the performance of their duties as jurors. The trial court did not abuse its discretion in granting the state's challenges for cause of these persons.
The appellant's additional contention in the footnote that venirepersons J.B. and D.H. were misled by the prosecutor's voir dire questions is without merit. The voir dire examination of these two persons, in which the appellant's counsel also participated, was adequate from which to determine their views on capital
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