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State v. Bondurant3/20/1998
tential jurors questions about their ability to reserve judgment on punishment until after hearing proof of mitigating circumstances was error. Defense counsel was not questioned about this matter at the hearing on the motion for new trial. Nevertheless, given his trial strategy of creating a reasonable doubt at the guilt phase, we believe refraining from asking questions about sentencing could be employed as sound tactical approach, in that such questions could have been interpreted as an admission of guilt. Moreover, because we have found that the questioning of jurors was sufficient to ensure that a fair and impartial jury was impaneled, the defendant has suffered no prejudice.
In order to show that the jurors who sat in this case did not reserve judgment on the question of punishment, the defendant relies on the affidavits of three jurors. He argues that the trial court should not have impeded the development of the evidence by refusing to let one of the jurors testify concerning his "death qualification" and by only allowing the affidavits to be presented as offers of proof.
At the hearing on the motion for new trial, the defendant attempted to introduce into evidence the testimony and affidavits of jurors in order to prove that the jury was not impartial on the issue of punishment. Juror William Ivey's affidavit indicated that he believed "if two or more conditions existed, we had to give the death penalty." He also indicated in his affidavit that "some crimes should have an automatic death penalty - like murder, rape, and drug dealers." Juror Billy Taylor's affidavit stated "I had made up my mind when we found him guilty what the sentence should be - death." Juror Pamela Williams' affidavit confirmed that "one man had said he had made up his mind as soon as he got back to the jury room."
The trial court properly refused to consider the testimony or affidavits on the issue of whether the jurors who sat in this case were "automatic death penalty" jurors. As stated earlier, Tennessee Rule of Evidence 606(b) prohibits a juror from giving testimony on any matter or statement occurring during the course of the jury's deliberations or on the effect of anything upon a juror's mind or emotion as influencing his or her vote. The exceptions are that a juror may testify on the question of whether any extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agree in advance to be bound by a quotient or gambling verdict without further Discussion. Recently, in Henley v. State, --- S.W.2d ---, No. 01S01-9703-CC-00056, (Tenn. Dec. 15, 1997), our supreme court made it clear that Rule 606(b) prohibits consideration of jurors' testimony or affidavits as evidence of prejudice. --- S.W.2d at ---, slip op. at 18 (citing State v. Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994)).
Next, the defendant contends that he was denied an impartial jury because neither the trial court nor defense counsel attempted to rehabilitate seven jurors who were excused because they expressed scruples against imposing the death penalty. In response, the state argues that the trial court properly excluded these seven jurors for cause because each had views toward capital punishment which would prevent or substantially impair the performance of their duties as jurors.
In determining when a prospective juror may be excused for cause because of his or her views on the death penalty, the standard is "whether 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 v. Witt, 469
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