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State v. Lotches12/29/2000
ture of Warren's various responses, we think it particularly important to defer to the trial court's determination.SeeNefstad, 309 Or at 538 (according trial court's conclusions great weight under similar circumstances). The record supports the trial court's factual findings respecting Warren's ability to perform her role as a juror. We find no error.
Robotham also expressed contradictory views concerning the death penalty. In his jury questionnaire, he indicated strong disagreement that most murderers should receive the death penalty, expressed no opinion whether he could vote to impose the death penalty, and indicated that he had such strong feelings against the death penalty that he would be unable to be fair and impartial. Duringvoir dire, Robotham stated that, philosophically, he opposed the death penalty, explaining, " side from the fact that an innocent person could be convicted, I am basically opposed to the State taking a life."
During questioning by defense counsel, Robotham moderated the foregoing statements by repeatedly answering that he thought that he would be able to answer the four death-penalty questions fairly and impartially, and that he thought that he would be able to follow the court's instructions. On further questioning by defense counsel, Robotham indicated that he had changed his mind since completing thevoir direquestionnaire and had changed his "no opinion" response to the question whether he could vote for the death penalty to "Yes, I think I could" vote to impose the death penalty.
In answer to the prosecutor's questions whether Robotham thought that his strongly-held views against the death penalty substantially would impair his ability to have a role in executing defendant, Robotham answered:
"Well, I guess all I could say is I make an effort to follow the law. I think a completely open mind is a myth.
"* * * * *
"But that's all -- I would make an effort to give an impartial judgment."
On further questioning by the prosecutor, Robotham emphasized repeatedly that, although he would make every effort to be fair, he could not say for sure whether his opposition to the death penalty or even the presence of defendant in the courtroom for a few weeks might impair his ability to follow the law. Moreover, when asked to consider the matter in terms of percentages, he estimated that there was a 60 percent chance that he could put his feelings regarding the death penalty aside. Finally, during further questioning by defense counsel, the following interchange took place:
"Q. f you felt the State had proven beyond a reasonable doubt on all four questions yes, could you vote yes on all four questions based upon evidence and the instructions?
"A. Well, again, I think I could.
"Q. You would try your hardest?
"A. Again, I don't feel comfortable to say yes or no. I think I could.
"Q. So basically you are saying, given everything we discussed, all the questions [the prosecutor] asked you and I asked you and the judge told you, do you think you can be fair to both sides in this case given the issues of the death penalty?
"A. Yes."
The trial court granted the state's motion to excuse Robotham for cause. In so doing, the court stated:
"I find that even though he has indicated that he would try to set aside his personal beliefs against the death penalty, he did indicate that he would have a 60\40 percent difficulty in setting aside his opinions and that is certainly a substantial infringement upon his capacity to follow the court's instructions and follow the law that applies."
Again,
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