Summary
In Berkley, the appellant complained about hypothetical scenarios which the state posed to prospective jurors involving death as a result of mercy killing, domestic violence, and bullying.
Summary of this case from Daniel v. StateOpinion
No. AP-74,336
Delivered April 6, 2005. DO NOT PUBLISH.
On Direct Appeal from El Paso County.
JOHNSON, J., delivered the opinion of the Court, joined by KELLER, P.J., PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ. MEYERS, J., not participating.
OPINION
Appellant was charged with capital murder by an indictment that alleged, in three paragraphs, murder in the course of committing and attempting to commit robbery, kidnapping, and aggravated sexual assault. A jury convicted appellant, and pursuant to the jury's answers to the special issues, the trial court sentenced appellant to death. On appeal, appellant raises twelve points of error.
The indictment allegations of the three separate paragraphs were not listed in the conjunctive or disjunctive, but rather the three paragraphs were listed consecutively as paragraphs A, B, C, without a conjunction.
I. JURY SELECTION
Point of error one alleges that the trial court erred in overruling appellant's objection to the prosecution's use of commitment questions during jury selection. The record shows that individual voir dire was conducted over several weeks. After challenges for cause were exercised and some prospective jurors were excused by agreement, over forty prospective jurors remained. The parties then exercised their peremptory challenges, with appellant exhausting all of his. Twelve jurors and two alternates were selected. Appellant complains about hypothetical scenarios which the state posed to thirty-eight prospective jurors (although he lists only thirty-seven by name), and lists twenty-eight who were still prospective jurors when peremptory challenges were exercised. Eight of those twenty-eight, six regular jurors and both alternates, served on the jury. By way of example, appellant recites the questioning of prospective jurors Galindo and Rosas, during which the prosecutor used hypotheticals involving death as a result of mercy killing, domestic violence, and bullying. Appellant claimed both at trial and on appeal that such hypotheticals improperly commit and contract with prospective jurors in violation of Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). "An attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts." Standefer, supra at 179, quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831 (1993). "Commitment questions `commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.'" Lydia v. State, 109 S.W.3d 495, 498 (Tex.Crim.App. 2003), quoting Standefer, supra. While a commitment question can be proper or improper, in Standefer we announced the inquiry for improper commitment questions to prospective jurors:(1) Is the question a commitment question, and (2) Does the question include facts — and only those facts — that lead to a valid challenge for cause? If the answer to (1) is "yes" and the answer to (2) is "no," then the question is an improper commitment question, and the trial court should not allow the question.Standefer, supra at 182-83. "Commitment questions are improper when (1) the law does not require a commitment or (2) when the question adds facts beyond those necessary to establish a challenge for cause." Lydia v. State, 109 S.W.3d at 498. Appellant acknowledges that the prosecutor "scrupulously avoided actually asking any prospective juror whether he would actually assess a five-year probation under these hypothetical circumstances, but did follow up in each instance with the broad question whether the prospective juror could conceive a scenario in which he or she could consider such a punishment." Appellant asserts that, by prefacing her otherwise broad question with fact-specific hypotheticals, the prosecutor was, "in essence, asking the prospective jurors how they would resolve that broader question in light of the specific facts posed"; that is, the prosecutor was asking prospective jurors "whether they could consider probation for a `mercy killing' or when the victim was of an unpalatable character." It appears to us that, in using those hypotheticals, the prosecutor was not asking prospective jurors to resolve, or to refrain from resolving, any issue in any certain way after learning of a particular fact, and thus was not asking a commitment question, prohibited or otherwise. Rather, the prosecutor was presenting possible scenarios to facilitate inquiry into the prospective juror's views regarding punishment. Because the challenged inquiries were not improper commitment questions, we conclude that the trial court did not err in overruling appellant's objections thereto. We overrule point of error one. Point of error two alleges that the trial court erred in denying appellant's challenge for cause against prospective juror Davis because she was not able to objectively assess the credibility of police witnesses. Appellant asserts that prospective juror Davis held an extreme or absolute position regarding the credibility of a witness and, because of her categorical belief in the infallibility of a police officer's testimony, she had a bias that rendered her challengeable for cause. The record reflects the following exchange between the attorneys and prospective juror Davis:
Q [STATE]: Police officers, FBI agents, Department of Public Safety forensic people, with regard to law enforcement witnesses.
To be qualified as a juror, a juror has to be able to listen to those types of witnesses with an open mind. Would you be able to do that?A [DAVIS]: Yes.
Q: You're not going to automatically believe or disbelieve a person in law enforcement just because they're in that field?
A: I would be more inclined to believe them, but if it seems unbelievable, I wouldn't. But if I didn't know, I would be inclined to accept what they said.
Q: But you're not going to automatically believe them over any other type of witness; is that correct?
A: You mean over like a citizen as opposed to a policeman?
Q: Well, when you say that you're inclined to, but if you listen to them and you don't find it believable, you could go with that?A: That's right.
Q: The issue is, are you going to attach believability to them before you listen to them?
A: No. But if a policeman said she had a green dress on and a regular person said she had a blue dress on, I would be more inclined because I think they're trained in observation methods.But that's the only example I can think of.
Q: So you can consider their opinions where they have given you, maybe, their qualifications behind that?A: Yes.
Q: But you don't think that, as a general rule, they're not capable of lying?A: That's correct, I don't think that. Q: They're human just like everybody else? A: (Indicating.)
Q: So you can wait and listen to them, and then make up your mind after you hear them testify?A: Yes. When questioned by appellant, prospective juror Davis revealed the following:
Q [DEFENSE COUNSEL]: You indicated you're more inclined to believe police officers; is that correct?A: That's correct.
Q: And as I think [one of the prosecutors] said, that does cause me a little concern.A: I understand. Q: Right. A: That's just the way I was raised.
Q: Sure. Sure. For example, if the cop said the light was red, and the citizen said the light was green, and that's it, that's all you're going to hear —
A: If I was involved in it, it would make a difference, if the citizen was seeing it as I saw it or as the policeman saw it.Q: Right.
A: But if I wasn't involved in it, yeah, I would believe the policeman.Q: So pretty much you'd go with a guilty, right? A: In that instance that you quoted me.
Q: Okay. Now, my question to you is: Because of that leaning —A: Yes.
Q: — what I'll call a predisposition, can you put that aside or not?
A: I think I can make a judgment as to if I believe a person or not. That's all I can do. And if — if, in the instance you gave, if all it was was one single fact, I would be more inclined to believe the policeman. But if there is something where an interpretation was involved, I would use my judgment.
Q: Okay. Let's just — let's just go with the simple hypothetical.A: Okay.
Q: With that hypothetical in mind, would you pretty much, under that circumstance, without more, go with the cop?A: Yes.
Q: Then I've got to go back to the question I asked you before: Can you put that opinion aside and not be predisposed?A: I'm not sure. Q: Okay.
A: If I have two people telling me something and one of them's a policeman, I'm going to be inclined to believe the policeman unless I have some reason not to.
Q: Okay. At this point, you're not sure whether you could put aside that opinion or that belief?A: That's right.
Q: Okay. And I'm going to kind of make a quantum leap here in logic and go on to your view on the death penalty[.]* * *
A: I don't have a leaning towards [the death penalty in a capital murder case] like that with the policeman. I believe I can make the distinction that, as you know, you all talked about.Q: Okay.
A: But I feel more of a leaning towards the policeman than this other thing. I think I can separate the two —Q: Right. A: — on this — Q: The death penalty deal? A: Yes, I do. Q: Two different scenarios in your viewpoint, right? A: Yes.
Q: Let me give you an example. Let's say the cop says he took the confession voluntarily, but a defendant says that the cop threatened to beat him up and arrest his girlfriend if he didn't sign the dotted line.
A: Okay. That's a better example that I think I can separate there than just a factual thing. I do believe the observation powers of a policeman are pretty good, but in a case like that, I would — I think I could make a judgment in that type of case as to whether I believe the person or not.Q: Okay. All right.
A: And I wouldn't necessarily lean toward the policeman. I wouldn't be predisposed —Q: On the confession scenario? A: — on that one that you gave.
Q: Okay. So under that hypothetical, where we have two different facts on the record, two different factual scenarios, two different forms of testimony —A: Yeah.
Q: — where the defendant's saying he was coerced to give a confession —A: Yeah.
Q: — and we have the detective saying no coercion was involved, do you think you could judge the credibility of each one of them, right?A: Yes, I do in that scenario. Q: And you wouldn't automatically believe the cop? A: No, not that one.
Q: I have to ask you, how come you believe police officers have better powers of observation than, let's say, your average member of the community here?
A: Because of the training that — I don't know what they've been through, but you see things on TV where — I'll use the word model because I can't think of the word — silhouette pops up and then it goes down, and I believe they go through training where they have to identify that as a bad person, good person, a person they could shoot. And in their mind, they're thinking of details of that person, and, to me, I'm just thinking of getting out of there or protecting myself.* * *
Q: Okay. Can you put that belief, that you think that police officers have greater powers of observation than somebody else, can you put that aside or not?
A: No, I don't think I can. I think, generally speaking, they do have better powers of observation.The record reflects that prospective juror Davis was insistent in her belief that police officers have better powers of observation than other people and that she would therefore be more inclined to believe a police officer in a situation which involved his powers of observation. However, she also clearly indicated that she would not necessarily be so inclined to believe a police officer in other situations. It is well settled that, if prospective jurors have a predisposition to believe police officers such that it would prevent those persons from impartially judging the credibility of such witnesses, they have demonstrated a bias against the defendant and are subject to a challenge for cause pursuant to Article 35.16(a) of the Code of Criminal Procedure. Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App. 1978). However, in Gardner v. State, 730 S.W.2d 675, 692-93 (Tex.Crim.App.), cert. denied, 484 U.S. 905 (1987), we approved the denial of a challenge for cause against a prospective juror who had repeatedly indicated that he would lean toward the testimony of a police officer as opposed to a lay witness because of his deference to what he assumed to be the officer's superior powers of observation. We pointed out that such deference was "not at all an invalid consideration in weighing the reliability of any witness, provided the record bears out the assumption." Id. The record reflects that prospective juror Davis was clearly distinguishing between leaning toward believing a police officer's observations based upon her belief in the officer's training and not being predisposed to believe a police officer's testimony when it did not involve his powers of observation. In Feldman v. State, 71 S.W.3d 738, 747 (Tex.Crim.App. 2002), we reviewed the trial court's denial of a challenge for cause to a prospective juror who stated that he would lean towards believing an officer over a lay person. We commented that the prospective juror was not subject to a challenge for cause solely on the basis that he was more or less skeptical of a certain category of witness. In the instant case, we likewise conclude that the trial court did not err in denying appellant's challenge for cause against prospective juror Davis for not being able to objectively assess the credibility of police witnesses. We overrule point of error two. Point of error three asserts that the trial court erred by denying appellant's challenge for cause against prospective juror Lucero because he was predisposed to assess the death penalty for anyone convicted of capital murder. Appellant argues that every time Lucero was questioned specifically in terms of how a guilty verdict would affect his answer to the first special issue, "[H]e stated without contradiction that he would `automatically' find `future dangerousness' should he find [a]ppellant guilty" and thus, the trial court abused its discretion in denying his challenge for cause. The record reflects that Lucero answered questions from both defense counsel and the state with regard to whether he would be predisposed to answer the future-dangerousness special issue "yes" after a finding of guilt of capital murder.
Q: [STATE]: Now, special issue number one, would you be able to answer that question based on the facts and circumstances of a given case?A: [LUCERO]: Yes.
Q: And you would not automatically answer it to ensure that a particular result occurred?A: Right. Q: Now, let's move on to special issue number two. * * *
Q: So with regard to special issues number one and two, I need to ask you, also, because we have the burden of proof, we have to prove those beyond a reasonable doubt, which means that you can't answer them automatically just on a finding of guilt. Okay? Do you understand that?A: Yes, ma'am.
Q: You have to wait and hear the evidence and then answer those questions.A: Okay. * * *
Q: Same question again: Just because you're in favor of the death penalty doesn't mean you're going to answer these automatically to impose guilt [sic] just on a finding of guilt?A: Yes, ma'am. Q: You will or you won't? A: No, I won't. Q: You will listen to the evidence — A: Yes, ma'am.
Q: — hold us to our standard of proof, and then make your decision?A: Yes, ma'am. * * * Appellant's attorney then questioned Lucero.
Q: And because it is so strong, aren't you automatically — if you believed someone was guilty of capital murder, aren't you going to sentence them to death based on your belief?A: If the facts are there, yes.
Q: Well, if the facts are there — you've already found the individual guilty of capital murder.Those facts are there. A: Right.
Q: Those facts are there. Now, with those facts, are you going to sentence them to death?A: Yes, sir.
Q: You see, these issues up here [indicating], they pretty much give the juror latitude to go one way or the other. But what I'm hearing is, if you believe someone committed capital murder, you are going to give them the death penalty, right?A: If the facts are there, yes. Q: The facts that they committed capital murder? A: Yes.
Q: If those facts are there, you will give them the death penalty, right?A: I don't know. Defense counsel passed Lucero back to the state, and the prosecutor continued the inquiry.
Q: Are you implying — are you talking about the facts that lend themselves to imposing the death penalty, or are you just talking about on finding a person guilty of capital murder?Because he would ask you that, and then you would say "if the facts are there." You understand that you have to have found someone guilty to get to these issues [indicating]? A: Right. Q: Then there would be additional evidence. A: Right. Q: Is that the facts you're referring to? A: Yes.
Q: Because you can't — and that's why I asked you. When I asked you if you would automatically do it, you indicated you would not, that you would listen to the evidence —A: I would listen to the evidence.
Q: — and — and then decide whether or not it's life in prison or the death penalty.A: Right. Yes. Q: Can you do that fairly? A: Yes.
Q: And you can keep an open mind until you hear the facts?A: Yes.
Q: Okay. And after listening to the evidence in this case, if all the facts indicated that it should be life in prison, could you do that?A: No. Q: Even if the facts demonstrated that? A: Say it one more time. I'm confused.
Q: I'm confusing you. I'm sorry. If the facts indicated that the sentence should be life in prison — in other words, if there were mitigating circumstances that said that, could you do that?A: Yes.
Q: And if the facts warranted that the death penalty should be imposed, could you do that?A: Yes.
Q: So you can consider both, until you hear the facts?A: Yes. The state passed Lucero, and defense counsel questioned him further.
Q: Sir, if you found someone guilty of capital murder, could you give them a life sentence?A: Yes. Q: You could? A: [Indicating.]
Q: Because to me, you're changing your opinion a little.
A: Well, it'll go — well, depending how the case goes, really.
Q: All right. This is the premise: You've found someone guilty of capital murder.A: Right. Q: You've told me you believe in an eye for an eye. A: Right.
Q: Does that mean if you find someone guilty of capital murder, you're giving them the death penalty?A: [No response.]
Q: To me, it seems you're inclined to give the death penalty. That's what I'm hearing. I might be wrong.A: Well, I do believe in it.
Q: Right. Does that mean, since you believe in it, if you've found someone guilty of capital murder, you're giving them the death penalty? Is that what that means?A: Listening to — on that, I would say no, then. Q: You would say — why would you say no? A: Depending how everything went.
Q: Okay. Because this is what we're trying to do: We're trying to get jurors who can keep an open mind.A: Right.
Q: Some jurors cannot keep an open mind, and I'll give you some reasons why I'm not sure you can. If you can, great, but if you can't, you should not be a juror in this case, because the law says that only people who can truly, truly keep an open mind should be on the jury.For example, if someone is predisposed to not consider the death penalty because they disagree with it, and they say, Nah, I ain't giving anybody the death penalty, they're gone. Okay. If someone says, an eye for an eye, you kill, you [sic] gonna get killed, okay, that person can't keep an open mind either, and they should be let go also under our law. So my honest question to you is: Can you really keep an open mind as to life versus death if you found someone guilty of capital murder? Can you do that? A: Yes, I can.
Q: All right. Let me give you some reasons why I'm not sure — I think you can't. Of course, what I think doesn't matter. It's what the judge thinks. Okay?* * *
Q: Am I right or wrong? Can you keep an open mind in this case, sir?A: Yes, I can.
Q: If I [sic] find someone guilty of capital murder, are you going to automatically give them the death penalty?A: Yes. Q: All right.
Defense counsel again passed Lucero, and the state again questioned him. It pointed out that they were receiving different answers from him, and explained that the issue was whether he could keep an open mind, i.e. not make a determination until he hears the facts. The prosecutor then explained about the bifurcated trial process and that the state had to prove, beyond a reasonable doubt, the answers to the punishment special issues, and that Lucero could not automatically do anything without hearing the second part of the trial.
Q: [State] Can you set aside your personal feelings, and answer those questions based on the facts and circumstances or on the evidence in this case?A: [Lucero] Yes.
Q: And you can openly consider life, as well as the death penalty, and you're not going to automatically impose the death penalty?A: I see what you mean.
Q: Are you automatically going to impose the death penalty simply based on the fact the person's found guilty?A: Yes. Q: You will? A: Yes, I will. Q: Under all circumstances? A: [Indicating.] Q: I'm sorry, you have to answer out loud. A: Yes. Q: So you could not consider life in prison? A: No. Q: Never. A: Yes. Q: Okay. Why don't you reiterate it back to me. The trial court overruled appellant's "been asked and answered" objection. The prosecutor continued:
Q: Okay? Because I'm not sure I haven't confused you at this point.
A: If the person — if the person is found guilty with the facts and everything, yes, I do believe in the death penalty.
Q: Okay. And are you going to impose that regardless of what the facts and circumstances show?A: Oh, regardless?
After the trial court overruled another objection from appellant, the prosecutor again explained the two parts of a jury trial and the operation of the special issues at punishment, and continued to question Lucero.
Q: So what the law requires is that a person be able to answer those questions based on the facts and circumstances, not just on the finding of guilt, because, you know, in the second part, we're going to have to prove one and two to you beyond a reasonable doubt.A: Right.
Q: So there would be other facts and circumstances in that second part of trial, additional evidence.
When you get to special issue number three, the law says that if the facts and circumstances warrant life in prison, the juror has to be able to do that and consider that fairly and honestly and equally as if the facts and circumstances warrant the death penalty.
Now, my question is, can you consider life in prison if the facts and circumstances justify it —A: Yes. Q: — or show it? A: Yes.
Q: And could you consider the death penalty if that's what the facts and circumstances show?A: Yes. The state again passed Lucero, and defense counsel questioned him.
Q: [Defense counsel] Sir, in relation to question number one —A: [Lucero] Right.
Q: — if you've found someone guilty of capital murder, you're going to believe that they're a future danger to society, right?A: Right.
Q: Just based on the fact that they were convicted of capital murder, right?A: Right. After the trial court denied appellant's motion for a hearing outside Lucero's presence, defense counsel questioned Lucero about his belief that the death penalty is underused because there are too many murderers living in prison right now and that the state ought to just kill them because they're wasting taxpayer dollars and that, by killing someone, they forfeited their right to live in society. However, Lucero then indicated that he would not give someone the death penalty based upon the fact alone that they had been found guilty of capital murder and that he did not believe that they had forfeited their right to live. Defense counsel pointed out that Lucero was giving conflicting answers.
Q: But what I'm trying to find out, sir, is if you're predisposed to give the death penalty, and it appears to me that you are. Am I right?A: No.
Q: Okay. But you believe the death penalty is underused.A: Yes.
Q: Because we should not house people in the pen that commit murder; we should execute them, right?A: Yes.
Q: Okay. So you are predisposed to believe that we should execute everyone who commits murder, correct?A: Yeah.
Q: And for that reason, you cannot legitimately consider a life sentence for capital murder, can you?A: Well, it all depends.
Q: Everything depends on everything. But my question is: Based on your views and yourconvictions against murderers and your belief that we shouldn't house them in the pen, we ought to kill them, you can't honestly consider a life sentence in this case, can you?A: No.
Defense counsel passed Lucero, and the state continued its efforts to make sure that Lucero understood that he couldn't automatically impose one sentence or the other based upon a guilty verdict alone, and that the law says that he could not automatically answer special issue number one "yes" just because a person has been found guilty of capital murder; the state had to prove to the jury, beyond a reasonable doubt, that the person will a danger in the future. The state again explained to Lucero the bifurcated nature of the trial and that only after a guilty verdict would they enter the second phase in which the state would make opening arguments, present evidence, and have the burden of proof. Only then would the jury consider the special issues. The state then reiterated that "[t]he law says you have to keep your mind open in that second part of trial, . . ., to the full range of punishment, that being life in prison or the death penalty, if and until you've heard all the evidence in a case." Lucero indicated that he understood.
Q: That's where the automatic, not automatic part comes in. Okay?
Can you honestly and openly consider the full range of punishment in a capital murder, that being life in prison, as well as the death penalty depending on the facts and circumstances?A: Yes, ma'am.
Q: And if the facts and circumstances demonstrate it or warrant it, that the person deserves or gets life in prison, can you do that?A: Yes, I can. Q: Or the opposite? A: The opposite, yeah. The state then passed Lucero, who was permitted to step out of the courtroom. Appellant challenged him for cause, stating that Lucero had disqualified himself a number of times and had answered the state's questions "about three times" against its position. In particular, he pointed out that, when appellant had asked Lucero whether he could legitimately consider a life sentence if he found someone guilty of capital murder based on his views, his answer was, "No, I cannot." Appellant added that, based upon Lucero's "demeanor and his vacillation," it had not been shown that he could "keep an open mind on the full range of punishment in a capital murder case." Without waiting for a response from the state, the trial court, believing that Lucero "equivocated because of his confusion," found that he was a qualified juror and overruled appellant's objection. A vacillating prospective juror gives contradictory responses to voir dire questions which test his ability to follow legal requirements. Howard v. State, 941 S.W.2d 102, 107 (Tex.Crim.App. 1996). Clearly, the voir dire demonstrated that Lucero was very much a vacillating prospective juror, at times indicating that he would automatically impose the death penalty based simply upon a finding of guilt of capital murder, at other times indicating that he would not. When confronted with such a prospective juror who vacillates on his ability to answer the special issues without conscious bias or distortion, we defer to the findings of the trial court. Green v. State, 840 S.W.2d 394, 405 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1020 (1993). Lucero was clearly such a vacillating prospective juror. Accordingly, we defer to the trial court's action in denying appellant's challenge for cause. We overrule point of error three.