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State v. Jones6/15/2000
stioning. Therefore, the trial court's denial constituted harmless error.
We have recognized that death-qualification is appropriate in Arizona, even though juries do not sentence: " e have previously rejected the argument that, because the judge determines the defendant's sentence, the jury should not be death qualified. We have also repeatedly reaffirmed our agreement with Witherspoon v. Illinois and Adams v. Texas." State v. Van Adams, 194 Ariz. 408, 417, 984 P.2d 16, 25 (1999) (citations omitted). Even more importantly, however, this Court has applied and adopted the more liberal Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844 (1955), test. See State v. Anderson, __ Ariz. Adv. Rep. __, __ Ariz. __, __ P.2d __ (2000). In Wainwright, the Supreme Court took a step back from the rigid test articulated in Witherspoon, which required the prospective juror to unequivocally state that he could not set aside his feelings on the death penalty and impose a verdict based only on the facts and the law, and held that a juror was properly excused from service if the juror's views would "'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright, 469 U.S. at 424, 105 S. Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526 (1980)). The trial judge has the power to decide whether a venire person's views would actually impair his ability to apply the law. For this reason, "deference must be paid to the trial judge who sees and hears the juror." Id. at 426, 105 S. Ct. at 853. Thus, we recognize that the trial judge has discretion in applying the test; the inquiry itself is more important than the rigid application of any particular language.
Although the trial judge incorrectly stated that the Witherspoon/Wainwright standard did not apply because Arizona juries do not sentence defendants, in fact his approach complied with the constraints of Witherspoon/Wainwright. The trial court, in agreement with both parties, submitted written juror questionnaires at the outset of voir dire. These questionnaires were available to the parties after the venire persons completed them. The parties then conferred about which persons to strike based on the answers given. The questionnaire contained the following question:
If Robert Jones is convicted of one or more counts of first degree murder in this case, it is a legal possibility that he could receive a sentence of death. In Arizona, a jury only decides the question of whether the defendant is guilty or not guilty; the jury does not decide the sentence to be imposed, nor does it make any recommendation to the court on the sentence to be imposed. The matter of the possible punishment is left solely to the court. Therefore, if you serve as a juror in this case, you will be required under your oath to disregard the possible punishment and not to let it affect in any way your decision as to guilty or innocence. Can you disregard the possible punishment and decide this case based on the evidence produced in court? (Emphasis in original.)
Defense counsel stated only that " ithout waiving my request for my version of a questionnaire," he agreed to the proposed process. (R.T. 5/4/98, at 9.) He did not object to the trial court's particular question before the questionnaires were submitted. After the questionnaires were filled out and analyzed by the parties, the lawyers agreed to dismiss thirty jurors for cause because those persons had indicated that they could not set aside their beliefs about the death penalty or their opinions already formed from media coverage. The defense did not object to the dismissals, nor request to further question any of the d
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