Gray v. Mississippi
481 U.S. 648 (1987)

Annotate this Case

U.S. Supreme Court

Gray v. Mississippi, 481 U.S. 648 (1987)

Gray v. Mississippi

No. 85-5454

Argued November 12, 1986

Decided May 18, 1987

481 U.S. 648



Under Witherspoon v. Illinois,391 U. S. 510, and its progeny, the right to an impartial jury under the Sixth and Fourteenth Amendments prohibits the exclusion of venire members for cause in capital cases unless their stated opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors. Davis v. Georgia,429 U. S. 122, in effect established a per se rule requiring the vacation of a death sentence imposed by a jury from which a potential juror, who has conscientious scruples against the death penalty but who nevertheless, under Witherspoon, is eligible to serve, has been erroneously excluded for cause. At voir dire during petitioner's capital murder trial, the trial judge in eight instances denied the prosecutor's motions to dismiss for cause venire members who expressed some degree of doubt about the death penalty. The prosecutor used peremptory challenges to remove those eight panel members. When venire member Bounds, although initially somewhat confused in her response, stated that she could reach a guilty verdict and vote to impose the death penalty, the trial judge nevertheless excused her for cause on the motion of the prosecutor, who by then had exercised all of his peremptory challenges. The judge acknowledged that he had made the prosecutor use peremptory challenges against venire members whose opposition to the death penalty was unequivocal. Ultimately, the Mississippi Supreme Court affirmed petitioner's conviction and death sentence. Although acknowledging that Bounds was clearly qualified to be a juror, the court concluded that her erroneous exclusion did not prejudice petitioner, since that error simply corrected other errors the trial judge committed in refusing to dismiss venire members for cause after they unequivocally stated that they could not vote to impose the death penalty.

Held: The judgment is reversed in part and the case is remanded.

472 So.2d 409, reversed in part and remanded.

JUSTICE BLACKMUN delivered the opinion of the Court as to Parts I, II, III-A, III-B-l, and IV, concluding that:

1. Venire member Bounds was clearly qualified to be seated as a juror under Witherspoon and its progeny. Thus, the trial court was not authorized to exclude her for cause. Pp. 481 U. S. 657-659.

Page 481 U. S. 649

2. Davis is reaffirmed. Witherspoon violations constitute reversible constitutional error, and cannot be subjected to harmless error review. Pp. 481 U. S. 659-667.

(a) The State Supreme Court's analysis is rejected if and to the extent it is based on the reasoning that the trial judge restored one of the State's peremptory challenges by determining that he had erred in denying one of the Witherspoon motions, and that Bounds' erroneous removal for cause was therefore harmless, since the State would have used its restored challenge to remove her in any case. This "unexercised peremptory" argument wrongly assumes that the crucial question is whether a particular prospective juror is excluded due to the court's erroneous ruling. Rather, the relevant inquiry is whether the composition of the jury panel as a whole could possibly have been affected by the error. However, the jury selection process requires a series of on-the-spot decisions weighing the relative objectionableness of a particular venire member against the number of peremptory challenges available at that time. Thus, the nature of the selection process defies any attempt to establish that an erroneous Witherspoon exclusion is harmless. Pp. 481 U. S. 661-666.

(b) The State's argument that Bounds' exclusion was a single technical error that should be considered harmless because it did not have any prejudicial effect is unavailing under Davis. Pp. 481 U. S. 666-667.

3. The State Supreme Court's judgment cannot stand insofar as it imposes the death sentence. P. 481 U. S. 668.

JUSTICE BLACKMUN, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS, concluded in Part III-B-2 that, since it appears that prosecutors often use peremptory challenges to remove venire members who have expressed any degree of hesitation against imposing the death penalty, and because courts generally do not review the prosecution's reasons for exercising peremptory challenges, it cannot be said that an erroneous exclusion for cause of a scrupled, yet eligible, venire member is an isolated incident having no prejudicial effect in any particular case. The constitutional right to an impartial jury is so basic to a fair trial that its infraction can never be treated as harmless error. Pp. 481 U. S. 667-668.

JUSTICE POWELL, agreed that the trial court erred in removing Bounds for cause, and that Davis therefore requires petitioner's resentencing. But the proper exclusion by means of peremptory challenges of other jurors who might have shared Bounds' views did not exacerbate the prejudice created by her removal, and has no significance to the decision of this case. Witherspoon and its progeny do not restrict the traditional rights of prosecutors to remove peremptorily jurors believed to be unwilling to impose lawful punishment. Pp. 481 U. S. 669-672.

Page 481 U. S. 650

BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B-l, and IV, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Part III-B-2, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, post,481 U. S. 669. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post,481 U. S. 672.

JUSTICE BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B-l, and IV, and an opinion with respect to Part III-B-2, in which JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join.

More than 10 years ago, in Davis v. Georgia,429 U. S. 122 (1976) (per curiam), this Court on certiorari summarily reversed a judgment of a state court and ruled that, when a trial court misapplies Witherspoon v. Illinois,391 U. S. 510 (1968), and excludes from a capital jury a prospective juror who in fact is qualified to serve, a death sentence imposed by

Page 481 U. S. 651

the jury cannot stand. [Footnote 1] This case presents the question whether the Court now should abandon that ruling and, instead, subject an impermissible exclusion to harmless error renew.


In June 1982, petitioner David Randolph Gray was indicted in Harrison County, Miss., on a capital charge for the stabbing death of Ronald Wojcik while engaged in the commission of the felony of kidnaping. [Footnote 2] The trial judge began the jury selection process by assembling the entire venire in the courtroom. He then formed an initial panel for voir dire by calling 12 persons to the jury box. Tr.193-194. After preliminary questioning by the court regarding prior knowledge of the case and of the parties involved, the prosecutor commenced his examination of the panel. After a member was removed for cause or by the prosecutor's use of a peremptory challenge, another venire member was called to the box for questioning by the prosecutor. When the prosecutor reached the point where he acknowledged that he would accept the full panel as it stood, the voir dire shifted to the defense, and petitioner's attorney followed the same procedure. The questioning continued in this alternating fashion, with each side examining those venire members who had been called to the box since its last opportunity to inquire, until the final panel was selected.

The panel members were questioned individually for the most part, but this took place in the presence of the others

Page 481 U. S. 652

in the box as well as in the presence of all prospective jurors in the courtroom waiting to be called. As a result, venire members were able to learn the consequences of different responses. In particular, they learned what response would likely result in their being excluded from the jury. This knowledge caused difficulty during the prosecutor's questioning. He asked each panel member whether he or she had any conscientious scruples against capital punishment, and whether he or she could vote to impose a death sentence. Whenever a prospective juror revealed any such scruples or expressed any degree of uncertainty in the ability to cast such a vote, the prosecutor moved to have the panel member excused for cause. In one instance, the court granted that motion. Id. at 368. In eight instances, however, the court denied the motion. The prosecutor then used peremptory challenges to remove those eight panel members. App. 3, 5, 6, 9, 12, 13, 15, 16. [Footnote 3] After his denials of these for-cause motions, the judge observed that venire members perhaps were not being forthright in their responses to the prosecutor. He criticized them for expressing insincere hesitation about

Page 481 U. S. 653

the death penalty in order to be excluded from the jury. He admonished them: "Now I don't want nobody telling me that, just to get off the jury. Now, that's not being fair with me." Id. at 16. [Footnote 4]

By the time venire member Mrs. H. C. Bounds was called to the jury box, the prosecutor had exercised all 12 of the State's peremptory challenges, see Miss.Code Ann. § 99-17-3 (1972), 4 of which apparently were exercised for reasons unrelated to the panel members' responses to Witherspoon questions. See Tr. 301-302, 381, 390-391. Although the voir dire of member Bounds was somewhat confused, she ultimately stated that she could consider the death penalty in an appropriate case, and the judge concluded that Bounds was capable of voting to impose it. [Footnote 5] Evidently deciding

Page 481 U. S. 654

that he did not want Bounds on the jury and realizing that he had no peremptory challenge left, the prosecutor asked the court to allow the State another such challenge. [Footnote 6] App. 22. He argued that the court had erred in denying five or six of the State's for-cause challenges, and thereby had compelled the State to use its peremptory challenges against those venire members. The prosecutor asserted that, if he had another challenge, he would use it to remove Bounds. Ibid.

The judge initially observed,

"Well, I think that's right, I made you use about five of them that didn't equivocate. Uh, I never had no idea that we'd run into this many."

Id. at 23. After defense counsel objected to granting the State a 13th peremptory challenge, ibid., the prosecutor urged the court to reverse one of its earlier denials of his for-cause motions, which would restore a peremptory challenge to the State. The trial court responded:

"Well, I didn't examine them myself. Of course, I admit that they were unequivocal, about five of them, that answered you that way."

"Go ask her [Bounds] if she'd vote guilty or not guilty, . . . and let's see what she says to that."

"If she says, if she gets to equivocating on that, I'm going to let her off as a person who can't make up her mind."


In response to the prosecutor's questioning, Bounds stated that she could reach either a guilty or not guilty verdict, and that she could vote to impose the death penalty if the verdict were guilty. Id. at 24. Despite these answers, the prosecutor

Page 481 U. S. 655

renewed his motion that she be removed for cause. Defense counsel pointed out that Bounds' answers to the questions did not render her excludable. He further contended that the prosecutor had not properly questioned the earlier jurors, who had not been excused for cause, to determine whether they were excludable under Witherspoon. The judge agreed that the prosecutor had not used the appropriate language and noted, "I should have questioned them on this, I guess. . . ." Id. at 25.

After still further discussion, the judge excused Bounds for cause, but expressly declined to reconsider his earlier refusals to strike venire members for cause. [Footnote 7] The voir dire continued until both sides accepted 12 venire members in the box

Page 481 U. S. 656

and two alternates. The trial began that afternoon, and concluded three days later when the jury convicted petitioner of capital murder and sentenced him to death.

In an otherwise unanimous opinion, the Supreme Court of Mississippi divided on petitioner's claim that his death sentence was invalid because the exclusion of Bounds violated his right to a fair and impartial jury, and was inconsistent with Witherspoon's dictates. 472 So.2d 409 (1985). The majority stated at the outset that the jury selection problem in the case was created in part by the trial court's failure to follow the voir dire guidelines for capital cases set forth in Armstrong v. State, 214 So.2d 589, 593 (Miss.1968), cert. denied, 395 U.S. 965 (1969), which were aimed at ensuring compliance with Witherspoon. 472 So.2d at 421. Despite this violation of state procedure, the court affirmed petitioner's sentence, as well as the judgment of conviction.

The majority explained that reluctance on the part of some venire members to serve complicated the jury selection. Ibid. The majority did not discuss in any detail the voir dire of the venire members whom the State removed by peremptory challenges. It noted, however, that the trial court had refused to excuse several jurors who had expressed conscientious scruples against the death penalty and who had stated they could not vote to inflict it. The majority offered the following explanation for the trial judge's action:

"It is abundantly clear from the record that his reason for doing so was because he believed that the jurors were simply claiming to have conscientious scruples against the death penalty so that they could be released from jury service. Confronted by what he believed to be insincere attestations of personal moral convictions, the trial court was unwilling to dismiss those jurors for cause even though their responses clearly indicated that they could properly be so dismissed both under Witherspoon and Adams \[v. Texas,448 U. S. 38 (1980)]."

Id. at 421-422 (footnote omitted).

Page 481 U. S. 657

After reviewing Bounds' voir dire, the majority agreed with petitioner that Bounds "was clearly qualified to be seated as a juror under the Adams and [ 469 U. S. ] Witt, [469 U.S. 412 (1985)] criteria." Id. at 422. It concluded, however, that petitioner was not prejudiced by the trial court's erroneous exclusion of this juror:

"The force and effect of the trial court's ruling was to correct an error he had committed in refusing to dismiss other jurors for cause after they had unequivocally stated that they could not vote to impose the death penalty in any circumstance. . . . That being the case, the trial court was correct when it recognized the error in its prior rulings and took affirmative action to correct that error."

Id. at 422-423.

Writing in dissent and joined by two other members of the court, Justice Sullivan emphasized that, according to the record, the trial judge excused Bounds for cause ("the majority . . . contradicts the trial judge's very words"), not on the basis of a peremptory challenge. Id. at 424. In the dissent's view, the majority's reasoning was invalid because, under Davis v. Georgia, courts could not treat erroneous Witherspoon dismissals as harmless error. 472 So.2d at 425.

We granted certiorari, 475 U.S. 1010 (1986), to consider whether to abandon the Davis ruling and whether the improper excusal of a juror for cause can be harmless.


In Witherspoon, this Court held that a capital defendant's right, under the Sixth and Fourteenth Amendments, to an impartial jury prohibited the exclusion of venire members

"simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction."

391 U.S. at 391 U. S. 522. It reasoned that the exclusion of venire members must be limited to those who were

"irrevocably committed . . . to vote against the penalty

Page 481 U. S. 658

of death regardless of the facts and circumstances that might emerge in the course of the proceedings,"

and to those whose views would prevent them from making an impartial decision on the question of guilt. Id. at 391 U. S. 522, n. 21. We have reexamined the Witherspoon rule on several occasions, one of them being Wainwright v. Witt,469 U. S. 412 (1985), where we clarified the standard for determining whether prospective jurors may be excluded for cause based on their views on capital punishment. We there held that the relevant inquiry 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.'"

Id. at 469 U. S. 424, quoting Adams v. Texas,448 U. S. 38, 448 U. S. 45 (1980).

There is no need to delve again into the intricacies of that standard. It is necessary, however, to keep in mind the significance of a capital defendant's right to a fair and impartial jury under the Sixth and Fourteenth Amendments.

JUSTICE REHNQUIST, in writing for the Court, recently explained:

"It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law."

Lockhart v. McCree,476 U. S. 162, 476 U. S. 176 (1986). The State's power to exclude for cause jurors from capital juries does not extend beyond its interest in removing those jurors who would

"frustrate the State's legitimate interest in administering constitutional capital sentencing schemes by not following their oaths."

Wainwright v. Witt, 469 U.S. at 469 U. S. 423. To permit the exclusion for cause of other prospective jurors based on their views of the death penalty unnecessarily narrows the cross-section of venire members. It

"stack[s] the deck against the petitioner. To execute

Page 481 U. S. 659

[such a] death sentence would deprive him of his life without due process of law."

Witherspoon v. Illinois, 391 U.S. at 391 U. S. 523.

Every Justice of the Mississippi Supreme Court expressly stated that panel member Bounds "was clearly qualified to be seated as a juror under the Adams and Witt criteria." 472 So.2d at 422 and 424. We agree. Gray's death sentence therefore cannot stand unless this Court chooses to abandon Davis.


Although Davis was not cited in the Mississippi Supreme Court's majority opinion in the present case, this Court in Davis surely established a per se rule requiring the vacation of a death sentence imposed by a jury from which a potential juror, who has conscientious scruples against the death penalty but who nevertheless, under Witherspoon, is eligible to serve, has been erroneously excluded for cause. See Davis, 429 U.S. at 429 U. S. 123-124 (dissenting opinion). The Davis per curiam opinion served to identify the Court's course after Witherspoon. [Footnote 8] Soon after Witherspoon was decided, the Court was presented with several situations in which state courts had exhibited their confusion as to how to apply the standard enunciated in that case. [Footnote 9] In 1971, it had summarily

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