Beaver v. State

Appellant, BEAVER, Allen Van Tennessee, Appellee.

STATE Appeals Tennessee.

Court of Criminal

Aug. 20, 1971. Denied

Certiorari Jan. 1972. Stein, Memphis, appellant.

Brett B. Gen., Pack, H. Atty. Everett David M. Nashville, Atty. Gen., Falk, G. Asst. James Hall, Gen., Memphis, for Atty. Asst. Dist. appellee.

OPINION RUSSELL, Judge. Beaver, was appellant, Van Allen in the degree murder

convicted County in Shelby Criminal Court of hy his was process fixed at death that selection in this 1965 electrocution. Execution of this sentence trial did not conform the standards of first, stayed pendency, has been during pronounced of Witherspoon not until appeal (Beaver his explicit direct but retroactivity of that de- his 841) requires wherein cision judge us to the earlier so and, affirmed; subsequent- conviction was proceedings. We find no substantial dif- ly, for a final post- determination of ference this between what in was the case done proceeding. judice conviction sub and that which was condemned in Witherspoon. Admittedly, question multiplicity questions A of are raised prosecution that “primarily was con- petition post-conviction relief, filed during cerned with” voir dire was the in 1969 retained An counsel. evidenti- prospective jurors attitude of the toward ary had, hearing pre was but the evidence capital punishment. repeated- were Jurors transcript sented took the 'form of of ly they simply excused for cause when said trial and of the dire of voir examination they that capital punish- did not believe in prospective jurors preliminary thereto. ment, they it, opposed or said that were expressly appearance Beaver his at waived they it, or didn’t that believe could invoke hearing, testimony and no was heard. or they didn’t believe could “render exceptions presented The bill of to us is the verdict”. One was even excused for transcript limited to the of the voir dire cause because a member family of his was prospective examination jurors opposed punishment. capital Most were judge post- 1965 trial. The trial denied summarily they excused because answered relief, and the matter has been in negative they when asked if appealed Although to us. numerous errors return penalty. the death jurors Those assigned, only proposition have been would most likely have been shown briefed deals with not whether or questioning further properly been have penalty which set death was unconsti dismissal, subject depending upon wheth- tutionally contrary chosen to the rule of they pen- er or not could consider all the our pro United States Court as provided by alties law or or not ir- were in nounced the landmark case of Wither revocably committed before trial to vote Illinois, spoon 391 U.S. 88 S.Ct. against disqualifying A 1770,20 L.Ed.2d 776. unambiguous statement must be and it can never be assumed that that is the otherwise judge, The learned trial in his position prospective juror. memorandum facts and conclu did, proc- rather in the selection late sions of answered the Witherspoon ess, advise State’s counsel that the control- question in language: ling question juror was whether a be- not capital lieved but rather hand, “In the jurors, case at all whether it in a he would invoke who were excused for concerning cause case; but, significantly, jurors other answers, penalty, by their ei- subsequently they simply excused when said, ther positively or, effect, im- they said that did not believe in pliedly, they could not return a ver- punishment. juror simply One was excused by electrocution, and, dict of death con- said that he because he that he doubted sequently, were not excused be- penalty; could vote the death another be- cause they capital pun- did not believe cause he stated that he didn’t have ishment, ‘simply because voiced nerve; another he said “it because would general objections penalty, hard”; he awful and another because expressed religious conscientious or didn’t “think so.” scruples against its infliction’.” are agree unable to point with this up character- To the fact that this was ization of the people record. It understandable who would scruples against infliction. people religious its penalty, but Holman, it, quote this The later of Boulden we in advance to committed re 22 L.Ed.2d U.S. 89 S.Ct. the record: from Witherspoon that iterates the rule of Turner, you Mr. “Mr. Catanzaro: most than be demanded of a venireman just a few remarks I made the heard the all of willing is that he be sir, case, In where ago. a minutes he by and that penalties provided state circumstances, mitigating no are there the committed, irrevocably not before be you fix the extreme could penalty against trial the begun, has vote is, by death electrocution? this and cir regardless of of the facts death might the course emerge that cumstances say that I I hesitate to “Juror: any on proceedings. of the Exclusion really. sure, not I am it. do carrying this broader basis than makes the Well, you the “Mr. Catanzaro: are constitutionally out of death sentence the that can only let us know. have one We impermissible. you from have to have to know now. We your answer on it. However, this not void does think, Witherspoon, supra, is author I under those circum- conviction. “Juror: stances, ity per is no say proposition I that there would have to no. se reversal requiring constitutional rule excused, “The Court: You’re Call sir. every jury of a im conviction returned the next one.” And, properly as in as selected that case. Witherspoon, showing there is that no Sometimes, in examining prospective jury respect this was biased jurors, you” State’s counsel “would or used as petitioner’s guilt. only It is in its role you” “will you” instead of “could deter- imposed arbiter of the to be that mining invoking attitude toward the death jury tried Beaver fell short which a penalty upon finding without impartiality that declared S. Su the U. mitigating circumstances, obtaining a ver- preme required compliance Court to be pledge merely itable a than com- with Sixth and Fourteenth Amendment mitment to consider the death rights. do anyone upon not find that was left jury did expressly agree who not he that Cardwell, 978 In 430 F.2d Woodards could penalty upon invoke a (6th a Wither- 1970), it was held that Cir. finding mitigating without circum- guil- spoon did not invalidate violation stances. ty only sentence that the death verdict and jury imposed by improperly Witherspoon, Supreme In S. Court U. could not be executed. In Cardinale part that condemned of the Illinois statute F.Supp. Henderson, (E.D.La.1970) which authorized the exclusion of all who violation, Witherspoon after a they capital said opposed pun- that were im- penalty court the death set aside ishment, they and all had indicated who im- of life posed place in its a sentence scruples against inflicting conscientious it. prisonment. (The jury trial choose prospective jurors same Those classes of find- imprisonment upon a only death life uniformly for cause in the excused said, effect ing of The court “the guilt.) judice. case sub Witherspoon to set aside breach its impose in and to penalty Witherspoon holds that a sentence place sentence which the other if death cannot carried out finding of imposed following a could have it was chosen imposed recommended However, Louisiana in another guilt.” by excluding for cause veniremen Henderson, F.Supp. 344 case, Ward v. objections to general because voiced found a the court there (W.D.La.1970), penalty expressed conscientious Witherspoon violation of but noted that the In Zimmer v. 206 Kan. court, specify upon did find- (1970) U. S. how P.2d the trial post- disposed Witherspoon upon cases court ing such would be of. The violation pro- then proceeding, looked Louisiana law for conviction ordered cedures, any, by on from him which remand sentence set aside and resentenced the federal af- imprisonment. court the state court could re- This action was to life duce the sentence in a case. firmed. questionable court concluded that it was Lee, People 254 N.E.2d In 44 Ill.2d jurisdiction whether the state court had appellate that if (1970), court held imprison- to reduce a death sentence life trial was sustained ment since the determines the sentence hearing ordered to determine court after a in a enjoined case. The court then competency that had been the of evidence executing Louisiana from petitioner the and trial, court upon then the trial used the custody ordered that he held in under penal to a should resentence the defendant conditions no more than had he onerous ty other than death. imprisonment

been sentenced to at his life Royster, 472, In 273 A.2d State v. 57 original He N.J. trial. was to be confined on prosecutor indicat- (1971), 574 wherein the death row. ed that his office would waive the the penalty, appellate the court reduced Beto, (5th In Marion 434 F.2d Cir. v. 29 imprisonment. to life sentence and 1970), the court reversed remanded case to the district court with directions think it in We clear that the conviction option deter given that Texas be stands, only this case and we have to con- mining within a reasonable time whether question procedure sider of the a sen (1) to resentence the defendant to punishment in setting for the this con- imprisonment tence not to exceed life with text. provided out guilt, a retrial on the issue of again State is not foreclosed from procedure appropriate a under Tex such is seeking penalty; ig nor can we (2) as vacate the defendant’s statutory nore the right of Beaver to have retry and and him. sentence his punishment jury. set a T.C.A. § Had variety pun 39-2405. we not the Sherrick,

In the Arizona case of State v. degree ishment for first murder over (from 514, 105 (1970), Ariz. 467 P.2d 908 twenty years, life, execution), T.C.A. was proceedings, remanded for alternative 39-2405, we could substitute the al § (1) promptly either: if the indicated State (usually, juris ternative to death in other it retry desired for the Sherrick dictions, judg life and imprisonment) enter degree crime of first murder with the death if in accordingly, ment did not State penalty, the lower court should set aside the seeking sist upon again penalty. trial, proceed conviction and with a new cases, However under our we believe that or (2) if the State did not so move for a principle laid down in v. Corlew trial, new the lower court would set aside State, 220, 900, 181 and Tenn. 180 S.W.2d pronounce and a sentence of death State, 604, followed Forsha v. 183 Tenn. imprisonment. sentence of life 463; State, 190 S.W.2d Waldie v. 389, 537, 993; Rhay, In Hawkins v. 78 Wash.2d 230 S.W.2d Huffman v. Tenn. State, 738; (1970) finding 487, 474 P.2d 57 and Mc Tenn. degree standing State, 108, of the left crime were Inturff v. 207 Tenn. 338 S.W. and State, the court ordered a new trial on the 2d Vowell v. Tenn. State, setting compre- issue of Long forth and stated in S.W.2d 735 Tenn., guidelines hensive -for require the conduct of the us to 443 S.W.2d would trial, whereupon jury twenty years could consider the set the minimum sentence of day, having option a with the State not, accepting degree it in the first we enter a reduced sentence for murder Otherwise, imposed by sentence statu the uncon- ourselves. sentence of death tory punish stitutionally jury. Although right to have to set the unquali- abridged. ment could be said to be Plaintiff in Error does have the pun- his right fied to have the assess upon question In our research did we given the trial ishment under the mandate had find in which our cases here, no punishment court life commuted sentences from death to day, twenty years and event be less than one imprisonment; but decided possibly bene- so the defendant could not existing of then law whereun- context punishment. fit from retrial on the issue of only not, der the found mitigating It be that non-binding relative could well State would circumstances, pun- judge and the trial set welcome the reduction in sentence imprison- in expense ishment at either death or life than incur the considerable State, 673; Ray not, Perhaps ment. Poe 78 Tenn. volved in a retrial. under but State, majority (Cor 67 S.W. 553. the authorities cited lew v. 181 Tenn. 180 S.W.2d that where holding also have cases al.) et it would have the election il- jury’s setting of the prosecution make on the level rather than legally required is reversal high, the relief having by it made for them this Court punish- and a new trial both and as to adequate knowledge without difficul 660; State, McDougal ment. v. 64 Tenn. ties, any, may on encountered sub State, 87, Wilson v. 103 Tenn. 52 S.W. mitting necessary proof jury. another 247, 869; State, Cowan v. 117 Tenn. 973; Railway Light Co. course, S.W. Nashville & might parties it Of be that State, 446, 327; v. S.W. agree punishment Tenn. on and sub- State, 124, Bowmer acceptable v. to the mit a recommendation State, Pelt Van 193 Tenn. and the bulk of court and thus avoid However, inconvenience, S.W.2d 87. we do not any and with this unwanted these controlling opinion. cases to be of the majority suggestion I concur judice, punishment sub because the wliich prescribed

was here set was within the

limits. ample and precedent

We have clear trials, Tennessee bifurcated wherein by set jury, after second Jr., ROCKETT, Dorris Norvell legally has been found a first. Error, Plaintiff State, Huffman v. 200 Tenn. 292 S.W. 738; Mays 2d 207 Tenn. Tennessee, We, therefore, again STATE in Error. Defendant S.W.2d 572. affirm validity degree murder con Appeals Court Criminal of Tennessee. judgment guilt; and viction but vacate Oct. 1971. punishment set and remand the case a new trial new on issue Certiorari Denied punishment only. Jan. 1972.

WALKER, J., GALBREATH, P.

J., concur.

GALBREATH, Judge (concurring).

I basically concur Judge Russell’s

opinion but would substitute the minimum

Case Details

Case Name: Beaver v. State

Court Name: Court of Criminal Appeals of Tennessee

Date Published: Aug 20, 1971

Citation: 475 S.W.2d 557

Court Abbreviation: Tenn. Crim. App.