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State v. Jones6/15/2000
ismissed venire persons. The court then informed the attorneys that they should call attention to any additional questions that should be asked concerning the death penalty. The court dismissed another juror for cause because that juror stated he could not set aside his feelings on the death penalty. No other potential juror expressed this view. The defense then asked that the trial court pose additional specific questions concerning the death penalty. The court declined, stating that the questionnaires adequately addressed the issue, but agreed to inquire further whether any of the remaining jurors felt strongly about the death penalty, one way or the other. The judge reminded the jurors of the questionnaire, and asked them if they felt strongly about the death penalty. Three persons responded that they supported its imposition. Once again, defense counsel failed to object or request additional questions (although he did later strike these jurors with his peremptory strikes). Both parties passed the panel with no further objections.
In light of these facts, the trial court did not abuse its discretion. Not only did it ask the appropriate Witherspoon/Wainwright question in the questionnaire and to the remaining panel, but the defense counsel failed to object at any time to the questions. Thus, the court's procedure met the Witherspoon/Wainwright test.
Likewise, although the trial court did not specifically apply Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222 (1992), it also satisfied the constraints of this test through voir dire. Jones essentially argues that the trial court should have applied a reverse-Witherspoon test under Morgan. In Morgan, the Supreme Court held that a jury pool containing prejudiced jurors, be it toward one extreme or another, could not effectively pass judgment in a capital case. In Witherspoon, the Court was concerned that a juror who felt so strongly against the death penalty that he could not set aside his belief and follow the evidence and the law could not make an unbiased determination concerning the sentence. Morgan recognizes the opposite extreme: defendants have a right to know whether a potential juror will automatically impose the death penalty once guilt is found, regardless of the law. Thus, defendants are entitled to address this issue during voir dire. Morgan, however, does not require the trial court to life-qualify the jury in the absence of the defendant's request. See United States v. McVeigh, 153 F.3d 1166, 1206 (10th Cir. 1998) ("upon a defendant's request, a trial court is obligated to ensure that prospective jurors are asked sufficient questions"); United States v. Tipton, 90 F.3d 861, 879 (4th Cir. 1996) ("The right to any inquiry on this subject is dependent upon request . . . ."). The trial court is under no obligation to question the venire persons endlessly concerning other topics, even if those questions might indicate an affinity for the death penalty. See Trevino v. Johnson, 168 F.3d 173, 183 (5th Cir. 1999).
Here, the defense counsel never submitted questions to the trial court articulating the Morgan question. During voir dire, the court specifically asked if any of the jurors had strong feelings about the death penalty, either way. Three people responded that they favored its application, and all three were removed by the defense with its peremptory strikes. The defense did not object to the failure to remove for cause, and failed to request any additional questions. Although the trial judge did not rigidly apply Morgan, he sought and obtained the required information from the panel. For these reasons, we reject Jones's third point of error.
D.
Jones next argues that the trial court a
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