JANET L. WOLF and GERALD S. BOWKER, individually and as representatives of all similarly situated individuals v. DON SUNDQUIST, in his official capacity as Governor of the State of Tennessee; JOHN KNOX WALKUP, in his official capacity as Attorney General of the State of Tennessee; VICTOR S. JOHNSON, III, in his official capacity as District Attorney General for the 20th Judicial District for the State of Tennessee, and DAN M. ALSOBROOKS, in his official capacity as District Attorney General for the 23rd Judicial District of the State of Tennessee, and as representatives of all District Attorneys General in the State of Tennessee
No. 94C-4094
Appeal No. 01A01-9505-CV-00209; Davidson Circuit
IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
April 23, 1997
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
FILED April 23, 1997 Cecil W. Crowson Appellate Court Clerk
Irwin Venick
DOBBINS & VENICK
Nashville, Tennessee
For the Defendants/Appellees:
Jerry L. Smith
Deputy Attorney General
Nashville, Tennessee
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
This appeal involves the right of persons unalterably opposed to the death penalty to serve as jurors in capital murder cases. Two persons who had been excused for cause in separate capital cases filed suit in the Circuit Court for Davidson County, seeking a declaration that excusing prospective jurors who, as a matter of religious conscience, could not consider imposing the death penalty violated the prospective jurors’ constitutional rights. The trial court dismissed the complaint, and the jurors appealed. We have determined that the practice of excluding jurors whose religious principles prevent them from considering the death penalty regardless of the law and the evidence is not an unconstitutional religious test, does not violate the jurors’ constitutionally protected freedom of religion, and does not unconstitutionally discriminate against these jurors. Accordingly, we affirm the judgment.
I.
Janet L. Wolf is an ordained Methodist minister who resides in Nashville. She was summoned for jury duty in 1990 and was among the panel of prospective jurors in the first degree murder trial of William C. Dugger for the 1989 murder of Robin Boswell in Percy Warner Park.1 During the voir dire, the assistant district attorneys general questioned the prospective jurors about their ability to consider imposing the death penalty because the State had announced its intention to seek the death penalty against Mr. Dugger. In response to these questions, Ms. Wolf stated that she was philosophically, morally, and religiously opposed to the death penalty and that she could not set aside her personal opposition to the death penalty, even if the law required her to, because she believed that “it‘s always wrong.” The trial court granted the State‘s challenge for cause because “her views would prevent or substantially impair the performance of her duties as a juror in accordance with the jury instructions and oath.”
In December 1994, Ms. Wolf and Mr. Bowker filed a class action suit in the Circuit Court for Davidson County seeking declaratory relief that excluding persons from serving on juries in capital cases because of their religious opposition to the death penalty violated
II.
The right to trial by jury secured by our state and federal constitutions necessarily contemplates that the jury will be unbiased and impartial. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985 (1946); Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); Durham v. State, 182 Tenn. 577, 584, 188 S.W.2d 555, 558 (1945). In its constitutional sense, impartiality envisions not only freedom from jury bias against the defendant but also freedom from jury bias in the defendant‘s favor. Swain v. Alabama, 380 U.S. 202, 219-20, 85 S. Ct. 824, 835 (1965); Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S. Ct. 350, 351 (1887); Houston v. State, 593 S.W.2d 267, 272 (Tenn. 1980), rev‘d on other grounds, State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992); Toombs v. State, 197 Tenn. 229, 231-32, 270 S.W.2d 649, 650 (1954).
An impartial jury consists of jurors who will find the facts and conscientiously apply the law. Buchanan v. Kentucky, 483 U.S. 402, 417, 107 S. Ct. 2906, 2914 (1987); Wainwright v. Witt, 469 U.S. 412, 423, 105 S. Ct. 844, 851-52 (1985). To be considered impartial, a juror must be free of personal bias and must be indifferent and disinterested between the parties. Eason v. State, 65 Tenn. 466, 469 (1873). Unbiased jurors do not give free rein to their own biases or prejudices, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 153, 114 S. Ct. 1419, 1434 (1994) (Kennedy, J., concurring), and are able to follow the trial court‘s instructions. Lockett v. Ohio, 438 U.S. 586, 596-97, 98 S. Ct. 2954, 2960 (1978).
The courts are not strangers to issues involving the exclusion of prospective jurors whose opposition to the death penalty affects their ability to follow the law and the instructions of the trial court. Up to this point, the litigation focused exclusively on the defendant‘s constitutional right to be tried by an impartial jury selected from a cross section of the community. It is now settled that a criminal defendant‘s constitutional rights are not violated by excusing prospective jurors
This appeal implicates different constitutional rights. Instead of focusing on a criminal defendant‘s rights, it focuses on the constitutional rights of persons whose religious beliefs prevent or substantially impair their ability to consider imposing the death penalty. This right is of constitutional significance because providing all citizens with an opportunity to participate in the fair administration of justice is fundamental to our democratic system. J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 146; Powers v. Ohio, 499 U.S. 400, 407, 111 S. Ct. 1364, 1368-69 (1991); Lockhart v. McCree, 476 U.S. 162, 175, 106 S. Ct. 1758, 1765-66 (1986); Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 903 (Tenn. 1996).
We must construe our constitution as a whole and must harmonize and give effect to each of its provisions, Patterson v. Washington County, 136 Tenn. 60, 66, 188 S.W. 613, 614 (1916); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 575 (Tenn. Ct. App. 1994), and we should not permit the language of one provision to render another provision ineffective. Vollmer v. City of Memphis, 792 S.W.2d 446, 448 (Tenn. 1990). Accordingly, the contours of a prospective juror‘s right to serve on a jury should be consistent with those of a criminal defendant‘s right to a jury trial. These rights, after all, share a common purpose - to assure that juries are fairly chosen and impartial.
III.
Both
While
The struggle for religious liberty through the centuries has been an effort to accommodate the demands of the State to the conscience of the individual. Girouard v. United States, 328 U.S. 61, 68, 66 S. Ct. 826, 829 (1946). Both
Being excluded from service on a jury in a capital case does not infringe upon a person‘s religiously motivated opposition to the death penalty. These persons remain free to follow and to assert their beliefs. While excluding these persons from juries in capital cases affects their ability to translate their religious beliefs into action,
IV.
Ms. Wolf and Mr. Bowker also assert that questioning them concerning their religious beliefs with regard to the death penalty amounted to a religious test prohibited by
Ironically, the same persons who had fled from religious persecution in England and Europe soon began engaging in the same conduct in the colonies. State-sponsored religion was commonplace by the time of the Revolutionary War, Martin v. Beer Bd. for Dickson, 908 S.W.2d 941, 948 n.9 (Tenn. Ct. App. 1995), and many colonies were using religious tests to impose burdens and disabilities of various kinds upon other religions depending largely upon what group happened to be politically strong enough to legislate in favor of their own beliefs. Torcaso v. Watkins, 367 U.S. 488, 489-91, 81 S. Ct. 1680, 1680-82 (1961); 2 James Kent, Commentaries on American Law *35-37; 2 Joseph Story, Commentaries on the Constitution of the United States 615-16 (Boston, Little, Brown & Co. 1891) (“2 Story“). The colonists responded to these new threats to individual religious liberty by including strong safeguards in their early state constitutions and bills of rights. Thirteen state constitutions currently contain proscriptions against the use of religious tests to qualify for jury service.4
Religious tests probe religious beliefs. Torcaso v. Watkins, 367 U.S. at 494; Paty v. McDaniel, 547 S.W.2d 897, 907 (Tenn. 1977), rev‘d on other grounds, 435 U.S. 618, 98 S. Ct. 1322 (1978). Their purpose was to define qualifications to hold public office or to participate in other important civic activities such as testifying as a witness or serving as a juror. These tests took many forms, including statutes restricting the right to hold public office to persons
Notwithstanding the constitutional prohibitions against using political tests, the courts have repeatedly approved excluding from jury service persons whose religious beliefs affect their ability to be impartial. In an early decision upholding the exclusion of a Quaker from a capital case jury, Justice Story stated:
To insist on a juror‘s sitting in a cause when he acknowledges himself to be under influences, no matter whether they arise from interest, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice.
United States v. Cornell, 25 Cas. 650, 655-56 (C.C.D. R.I. 1820) (No. 14,868). Our courts have consistently reached the same result, State v. Smith, 893 S.W.2d 908, 915-16 (Tenn. 1994); Green v. State, 147 Tenn. 299, 310-12, 247 S.W. 84, 87-88 (1922); Ray v. State, 108 Tenn. 282, 289-90, 67 S.W. 553, 555 (1902), as have the other state courts. State v. Willoughby, 892 P.2d 1319, 1335 (Ariz. 1995); Smith v. Smith, 46 P.2d 232, 233 (Cal. Dist. Ct. App. 1935); State v. Sandles, 740 S.W.2d 169, 178 (Mo. 1987); State v. Leuch, 88 P.2d 440, 442 (Wash. 1939).
Both Ms. Wolf and Mr. Bowker stated that their religious beliefs would not permit them to find the facts and to apply the law in a capital case. Thus, the trial courts excluded them, not because of their religious beliefs but because their religious beliefs prevented or substantially impaired their ability, as jurors, to abide by their oaths and to follow the law and the trial court‘s instructions. Probing these jurors’ religious beliefs to test their ability to be impartial did not violate
V.
As a final matter, Ms. Wolf and Mr. Bowker assert that the trial courts violated
Active discrimination during the selection process invites cynicism about the jury‘s impartiality. Powers v. Ohio, 499 U.S. at 412. Accordingly, individual jurors have a right to be subjected to nondiscriminatory jury selection procedures. Georgia v. McCollum, 505 U.S. 42, 48-50, 112 S. Ct. 2348, 2353-54 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618, 111 S. Ct. 2077, 2081 (1991); Woodson v. Porter Brown Limestone Co., 916 S.W.2d at 903. All persons chosen for jury service have the right not to be excluded because of presumed disqualifications based on discriminatory or stereotypical presumptions unrelated to their ability to serve as impartial jurors. J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 143-44.
The United States Supreme Court has held that persons whose religious beliefs prevent them from considering the death penalty are not a distinctive group for the purpose of determining whether a jury was chosen from a representative cross section of the community. Buchanan v. Kentucky, 483 U.S. at 415; Lockhart v. McCree, 476 U.S. at 175-76. The Tennessee Supreme Court has reached a similar result, State v. Harbison, 704 S.W.2d 314, 318 (Tenn. 1986), as have other state courts. Ex Parte Ford, 515 So. 2d 48, 52-53 (Ala. 1987); People v. Howard, 824 P.2d 1315, 1327 (Cal. 1992); Pope v. State, 345 S.E.2d 831, 839 (Ga. 1986); Stanford v. Commonwealth, 734 S.W.2d 781, 785 (Ky. 1987); State v. Young, 853 P.2d 327, 343 (Utah 1993); State v. Hughes, 721 P.2d 902, 906-07 (Wash. 1986).
The public has a right to expect that juries in capital cases will not contain jurors who are unable or unwilling to follow the law. Buchanan v. Kentucky, 483 U.S. at 416. Rather than excluding persons for reasons unrelated to their ability to serve as jurors, a trial court is following its constitutional obligation to provide all parties with a fair and impartial jury when it excludes jurors who state that their religious beliefs will prevent or substantially impair their ability to apply the law to the facts of a particular case. Accordingly, the trial courts that excluded Ms. Wolf and Mr. Bowker from the capital case juries did not unconstitutionally discriminate against them because of their religious beliefs.
VI.
In summary, we find that the practice of excluding from capital case juries persons whose religious beliefs prevent or substantially impair their ability to be impartial does not violate the jurors freedom of conscience under
We affirm the judgment and remand the case to the trial court for whatever other proceedings may be required. We also tax the costs of this appeal to Janet L. Wolf and Gerald S. Bowker and their surety for which execution, if necessary, may issue.
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
HENRY F. TODD, P.J., M.S.
SAMUEL L. LEWIS, JUDGE