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State v. Lotches12/29/2000
rates that they could have put aside their personal opposition to the death penalty, fairly heard the evidence, and followed the court's instructions. Defendant argues that, underGray v. Mississippi, 481 US 648, 107 S Ct 2045, 95 L Ed 2d 622 (1987), the improper exclusion of a juror never is harmless error and that, therefore, he is entitled to a new trial.
The issue, again, is whether there is evidence in the record to support the trial court's determination that Warren and Robotham would not be fair and impartial. Our review of the record satisfies us that there was ample evidence to support the trial court's conclusion as to each of those jurors.
Warren expressed significant hesitancy in her ability to impose the death penalty. In her jury questionnaire, she indicated that she was "not sure" of her feelings about the death penalty. During thevoir direexamination, she stated that she was neither for nor against the death penalty but, upon questioning by defense counsel, she explained,
"I wouldn't think I could make a decision if someone should die or not. I feel that's God's decision. If it should be, it should be. But I don't think I could ever condemn somebody to death. I don't think I could."
On further inquiry from defense counsel, Warren stated that she would follow the court's instructions with respect to the four death-penalty questions. However, when the prosecutor and the trial court probed her views, Warren repeatedly stated that she did not think that she could make the decision to sentence someone to death, regardless of the evidence. In response to defense counsel's efforts to rehabilitate her, Warren ultimately stated, when asked if she could vote "yes" to the penalty-phase questions, "I could do it, yes. Yes, I could do it."
At the conclusion of thevoir direexamination, the trial court excused Warren for cause. The court ruled:
"I am going to grant the state's motion despite the answer to the last question. It is pretty apparent to me that Ms. Warren's beliefs have changed since she did fill out the questionnaire. Her beliefs are such that they would substantially interfere with her ability to decide the questions that will be put to her in the penalty phase of the case."
In response to defendant's continued objection to excusing Warren, the trial court explained its ruling in further detail:
"I realized her response to the last question. I did note that. My problem is, I guess among other things, it is pretty clear to me she pretty much would agree with any proposition put to her on the issue. Just judging her responses to the questions from both sides, the problem that she has with conscientious beliefs are such that she did pretty clearly, and to me more forthrightly, indicate that she would not consider properly the possibility of deciding to impose a death sentence based on her beliefs.
"I think that her responses, what she said earlier, she would try to follow the court's instructions and the law that applies to the case are the more honest answers to the questions put to her. In essence, in the final analysis, even saying she could try to put aside her beliefs, she indicated that she really could not vote for the question in the affirmative. It is clear to me that her views would be such that she would be pretty substantially impaired in terms of following the legal requirements."
The foregoing demonstrates that the trial court gave due consideration to all of Warren's statements and, based on those statements and on the court's observation of her demeanor and candor, determined that she would be unable to be fair and impartial. Because of the contradictory na
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