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Tanner v. State5/4/2000
cken. No one mentioned them at all and, therefore, no reasons were ever given by the prosecution to rebut Tanner's challenge. Thus, the trial court erred and the defendant's prima facie case stands as to Lampkin and Cain. Accordingly, we remand to the trial court for a Batson hearing as to these two jurors.
II.
WHETHER THE TRIAL COURT ERRED IN EXCUSING JURORS FOR CAUSE BASED UPON THEIR VIEW OF THE DEATH PENALTY
A. Standard of Review
. Prospective jurors in capital cases may only be excluded for cause based upon their views on capital punishment when those views would "prevent or substantially impair the performance of [their] duties as jurors in accordance with [their] instructions and oath." Simon v. State, 688 So. 2d 791, 799 (Miss. 1997); see also Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). "Stated another way, a prospective juror merely stating general objections or expressing conscientious or religious scruples against inflicting the death penalty is not enough for that juror to be excused for cause." Simon, 688 So. 2d at 800. "The juror need not expressly state that he absolutely refuses to consider the death penalty; an equivalent response made in any reasonable manner indicating the juror's firm position will suffice." Id. at 799.
. Furthermore, since a juror's bias against the death penalty does not have to be proven with unmistaken clarity, the decision of whether or not to excuse the juror is left to the trial court's discretion. Id. "Deference must be paid to the trial judge who sees and hears the juror." Underwood v. State, 708 So. 2d 18, 28 (Miss. 1998). Accordingly, "the determination of whether a juror is fair and impartial is a judicial question, and will not be set aside unless such determination is clearly wrong." Simon, 688 So. 2d at 799.
B. Analysis
. Tanner argues that the trial court erred by dismissing ten members of the venire for cause based upon their views on the death penalty. Tanner specifically asserts that four of the ten veniremen were willing to follow the law as given and should not have been excluded for cause.
1. Charles Hammond
Q: Would that be the way that you would stand if you were chosen as a juror in this case, that you would not believe in taking someone's life?
A: Right.
Q: And I understand you don't generally favor it, but under certain circumstances you could rule that way if that is what the Court rules, or instructs?
A: Like I said, I would find it difficult though, yes.
2. Elaine Harrell
Q: Would you base your decision upon that evidence and the law the Court gives you with regard to how you may sentence him?
A: Yes. I would try to, but still that - my first feelings would still be there, that I would not want to give a death penalty without an eyewitness.
3. Jessie Hooker
Q: Is that the only way you could consider the death penalty is if you were there yourself and saw it happen?
A: I don't see where I could condemn a man to death.
Q: Other than you being there, you never could convict?
A: I could never condemn a man to death. No.
Q: ...in your mind if you are convinced that he is guilty, then you can consider the death penalty at that time; is that right?
A: I would consider it, yes.
4. Vellana Davis
Q: Could you ever really consider giving the death penalty to someone if he didn't murder a child?
A: No, I couldn't.
Q: So if you want to give somebody a really ha
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