Petitioner challenged his jury conviction for rape and the
sentence of death imposed pursuant to Arkansas law on the grounds
that (1) the jury had determined the issues of guilt and sentencing
in a single proceeding, thus precluding him from presenting
evidence on the penalty issue without subjecting himself to
self-incrimination on the guilt issue, and (2) the jury had been
given no standards to guide it in sentencing. The District Court
denied a writ of habeas corpus, and the Court of Appeals affirmed.
Several prospective jurors had been removed for cause from the
panel "because they voiced general objections to the death penalty
or expressed conscientious or religious scruples against its
infliction," which this Court held impermissible in
Witherspoon
v. Illinois, 391 U. S. 510,
decided after petitioner's trial.
Held: Although the
Witherspoon issue was not
raised below, the case is remanded to the District Court for
consideration of that issue.
Boulden v. Holman,
394 U. S. 478.
398 F.2d 138, vacated and remanded.
Page 398 U. S. 263
PER CURIAM
In 1962, the petitioner was found guilty of rape by an Arkansas
jury without a verdict of life imprisonment, and the trial
court-imposed a sentence of death. [
Footnote 1] The Arkansas Supreme Court affirmed the
judgment of conviction. 236 Ark. 694,
370 S.W.2d
113. The petitioner then sought a writ of habeas corpus in the
United
Page 398 U. S. 264
States District Court for the Eastern District of Arkansas,
claiming, among other things, that his conviction and punishment
were unconstitutional in that (1) the jury had determined the two
issues of guilt or innocence and of a life or death sentence in a
single proceeding, thereby precluding him from presenting evidence
pertinent to the question of penalty without subjecting himself to
self-incrimination on the issue of guilt, and (2) the jury had been
given no standards or directions of any kind to guide it in
deciding whether to impose a sentence of life imprisonment or
death. The District Court denied the writ,
257 F.
Supp. 710, and the Court of Appeals for the Eighth Circuit
affirmed, 398 F.2d 138. We granted certiorari limited to the two
questions noted above. 393 U.S. 997.
The petitioner's trial took place long before this Court's
decision in
Witherspoon v. Illinois, 391 U.
S. 510. The trial transcript makes evident that several
prospective jurors were removed from the panel upon grounds held
impermissible in the
Witherspoon case. One prospective
juror, for example, was successfully challenged for cause solely on
the basis of the following exchange:
"Q. If you were convinced beyond a reasonable doubt at the end
of this trial that the defendant was guilty and that his actions
had been so shocking that they would merit the death penalty, do
you have any conscientious scruples about capital punishment that
might prevent you from returning such a verdict?"
"A. I
think I do."
(Emphasis supplied.)
Another venireman was removed from the jury panel on the basis
of the following question and answer:
"Q. Do you entertain any conscientious scruples about imposing
the death penalty?"
"A. Yes, I am afraid I do. "
Page 398 U. S. 265
Still another member of the panel was dismissed after the
following colloquy:
"Q. Mr. Adams, do you have any feeling concerning capital
punishment that would prevent you
or make you have any feelings
about returning a death sentence if you felt beyond a
reasonable doubt that the defendant was guilty and that his crime
was so bad as to merit the death sentence?"
"A. No, I don't believe in capital punishment."
(Emphasis supplied.) [
Footnote
2]
As was made clear in
Witherspoon,
"a sentence of death cannot be carried out if the jury that
imposed or recommended it was chosen by excluding veniremen for
cause 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.
We reaffirmed that doctrine in
Boulden v. Holman,
394 U. S. 478. As
we there observed, it cannot be supposed that, once such people
take their oaths as jurors, they will be unable "to follow
conscientiously the instructions of a trial judge and to consider
fairly the imposition of the death sentence in a particular case."
394 U.S. at
394 U. S.
484.
"Unless a venireman states unambiguously that he would
automatically vote against the imposition of capital punishment no
matter what the trial might reveal, it simply cannot be assumed
that that is his position."
Witherspoon v. Illinois, supra, at
391 U. S. 516
n. 9.
"The most that can be demanded of a venireman in this regard is
that he be willing to consider all of the penalties provided by
state law, and that he not be irrevocably committed, before the
trial has
Page 398 U. S. 266
begun, to vote against the penalty of death regardless of the
facts and circumstances that might emerge in the course of the
proceeding. If the
voir dire testimony in a given case
indicates that veniremen were excluded on any broader basis than
this, the death sentence cannot be carried out. . . ."
Id. at
391 U. S. 522
n. 21.
It appears, therefore, that the sentence of death imposed upon
the petitioner cannot constitutionally stand under
Witherspoon
v. Illinois. As in
Boulden v. Holman, however, we do
not finally decide that question here. The situation in this case
closely resembles that presented in
Boulden, in that the
petitioner's trial took place before the
Witherspoon
decision, and the
Witherspoon issue was not raised in the
District Court, in the Court of Appeals, or in the petition for
certiorari filed in this Court. The reasons that persuaded us to
remand the
Boulden case to the District Court apply with
equal force here:
"A further hearing directed to the issue might conceivably
modify in some fashion the conclusion so strongly suggested by the
record now before us. Further, it is not clear whether the
petitioner has exhausted his state remedies with respect to this
issue. Finally, in the event it turns out, as now appears, that
relief from this death sentence must be ordered, a local federal
court will be far better equipped than are we to frame an
appropriate decree with due regard to available [Arkansas]
procedures."
394 U.S. at
394 U. S. 484.
[
Footnote 3]
Page 398 U. S. 267
Accordingly, the judgment of the Court of Appeals is vacated,
and the case is remanded to the District Court, where the issue
that has belatedly been brought to our attention may be fully
considered. In the action we take today, we express no view
whatever with respect to the two questions originally specified in
our grant of certiorari. [
Footnote
4]
It is so ordered.
MR. JUSTICE MARSHALL took no part in the decision of this
case.
[
Footnote 1]
At the time of the petitioner's trial, Arkansas law provided
only two alternative sentences upon conviction for rape:
"
Penalty for rape. -- Any person convicted of the crime
of rape shall suffer the punishment of death [or life
imprisonment]."
Ark.Stat.Ann. § 41-3403 (1964 Repl. Vol.).
"
Capital cases -- Verdict of life imprisonment. -- The
jury shall have the right in all cases where the punishment is now
death by law, to render a verdict of life imprisonment in the State
penitentiary at hard labor."
Ark.Stat.Ann. § 43-2153 (1964 Repl. Vol.).
[
Footnote 2]
The record shows possible violations of the
Witherspoon
rule in tho removal from the venire of at least four other
prospective jurors.
[
Footnote 3]
During oral argument of this case, reference was made to the
following Arkansas statute:
"
Reduction of verdict. -- The court shall have power,
in all cases of conviction, to reduce the extent or duration of the
punishment assessed by a jury, if, in the opinion of the court, the
conviction is proper, and the punishment assessed is greater than,
under the circumstances of the case, ought to be inflicted, so that
the punishment be not, in any case, reduced below the limit
prescribed by law in such cases. Ark.Stat.Ann. § 43-2310 (1964
Repl. Vol.)."
No effort was made by the petitioner to seek relief in the state
courts under this statute. There is nothing in the record or
otherwise reported to us to indicate that this remedy is not now
available.
[
Footnote 4]
We have today granted certiorari in No. 486, Misc.,
McGautha
v. California, and No. 709, Misc.,
Crampton v. Ohio,
in which these two questions will be considered at an early date in
the 1970 Term.
MR. JUSTICE BLACK, dissenting.
Since I am still of the view that
Witherspoon v.
Illinois, 391 U. S. 510
(1968), was erroneously decided, I dissent from the opinion of the
Court in this case.