Ross v OK Brief of Respondent

    o 92

This 15th day of July. 1987.

before me this 
of July, 1987.

SWORN to 
15th day
^  . 7 *
Notary Public for \

(LS)
H>uth Carolina

My Commission Expires - / J t,-7

A'/on R bj,3



D U N LA P . C O D D IN G  8c P E TE R S O N
ATTO RN EYS AT L A W

9 4 0 0  N o r t h  Br o a d w a y . S u it e  4 2 0  

O K LA H O M A  CITY. O K LA H O M A  73114

J E R R Y  J .  O U N L A P .  IN C . 

C H A R L E S  A. C O D D IN G  
S A R Y  PE TE RSO N  
M AR Y M. LEE 
C A R O L Y N  O. MOON

T E LE PH O N E 
( 4 0 9 )  4 7 8 - 3 3 4 4

September 29, 1987

Joel Berger, Esq.
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
New York, NY 10013

Re: Ross v. Oklahoma
Dear Joel:

Enclosed is a copy of the State's Brief in the Ross case. 
Let me know if you have any thoughts about a reply brief.

Thank you again for your help in reviewing the 
Petitioner's Brief.

GP/kr

Yours very truly,

Enclosure



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i

QUESTIONS PRESENTED
1. Whether a criminal Defendant 

has been deprived of any constitutional 

right in jury selection by the arguably 

erroneous ruling on a challenge for cause 

to a juror, later excused by peremptory 
challenge, if the Defendant passes for 
cause each member of the jury which is 
finally seated.

2. Whether the Oklahoma statutes 
providing for peremptory challenges in 
criminal cases create an interest in life

liberty protected by the Fourteenth 
Amendment and, whether an arguably 

erroneous - ruling on a challenge for cause 

of a juror, later excluded by peremptory 

challenge, deprived the Defendant of a 

constitutional right by an "established 
state procedure."

3. Whether in a case in which 
factual guilt was fairly and reliably 

determined by an impartial jury and 

Defendant was represented by counsel,



constitutional error, if 
requiring exclusion of a 

juror by peremptory challenge 

beyond a reasonable doubt.

any, in 

questionable 
is harmless



Ill
TABLE OP CONTENTS

Questions Presented ......... . . . .  i
Table of Contents...................  iii

Statement of the C a s e ...............  1
Statement of the Facts...............  2

Trial Evidence...................  2

Voir Dire of Juror Huling........  18

Jurors accepted for cause
by the defense.................  20

Summary of the Argument.............  20

Conclusion............................  61

I
PEREMPTORY CHALLENGES ARE NOT 
CONSTITUTIONALLY REQUIRED........... 22

II
DEPENDANT WAS NOT DEPRIVED OP DUE 
PROCESS HEREIN........................ 33

III
ANY ERROR HEREIN IS HARMLESS
BEYOND A REASONABLE D O U B T ........... 48

Page



Table of Authorities
Ratson v. Kentucky, 476 U.S. ___,
•------ 790 L.Ed.2d 69, 30-81
TT586)................................

47
naniels v. Williams, 474 U.S.
----r 1Q6 S.Ct. 88 L.Ed.2d 663
0986) . . . ..........................
oavidson v. Cannon, 474 U.S. ___/
Tn6 S.Ct'. , 88~~L.Ed.2d 662,
682 (1986)............................
Delaware v. Van Arsdall, 475 U.S.

106 s.Ct. , 89 L.Ed.2d
6T4, 684-85 (198§T........................................... 59 ' 60

Ex Parte Spies, 123 U.S. 163,
168 (1887)............................
Cray tt. Mississippi, 481 U.S. -- ,
107 S.Ct. > 95 L.Ed.2d 622,
636 ......................................  51,52;

53,54,
55

flnif. Colorado and Santa Fe_
Railway Co. v. Shane, 157 U.S. 348 
(1895)........................
Harrison v. United States, 163
U.S. 140 (1896) ......................
Hicks 7 . Oklahoma, 447 U.S. 343 „ .
(1980)................... “ ............................................  ll'35’
Lewis v. United States, 146 U.S.
370 (1892)............................
Lockhart v. McCree, 476 U.S. ---,* 106 s.Ct. T7b8, 1770, 90
L.Ed.2d 137, 154-55 (1986)........... 26 •

iv
Page



V

Logan v. Zimmerman Brush Co.
455 O.S. 422 (1982) ..................

McDonough Power Equipment v. 
Greenwood, 464 U.S. 548, 553 
(1984)..........................

Parratt v. Taylor. 451 O.S. 527,
___ (1981)..................... .. . .
Rose v. Clark. 478 U.S.
106 S.Ct. ___, 92 L.Ed.2d 460
(1986) . . ~  . . . .

Ross v. State. 717 P.2d 117
(Okla. Cr. App. 1986) ...............

Sandstrom v. Montana. 442 U.S. 510 
(1979). ........... ............ ^ #

Stilson v. United States. 250 U.S. 
583, 586 (1919) ......................

Swain v. Alabama. 380 U.S. 202,
218 (1965). .................... . . .

jjarjius v. Oregon. 412 U.S. 470 
(19 73). . . . . ..................

Witherspoon v. Illinois. 391 U.S. 
510TL968)............. ...............

States v. Wood. 299 U.S. 123, 145 TL936).............

Statutes Cited

40,41,
45

29

43

55,56,
57,58,
59

1,51

55

23 '

23,24,
31,32
46

52

23

Page

42 U.S.C. S 1983. . . 41



No. 86-5309

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1986

BOBBY LYNN ROSS
Petitioner,v.

STATE OF OKLAHOMA,
Respondent.

BRIEF OF RESPONDENT

STATEMENT OF THE CASE
Petitioner, hereinafter Defendant, 

files this case seeking review of a 

decision of the Oklahoma Court of 

Criminal Appeals affirming his conviction 

of First Degree Murder and imposition of 

the death penalty and affirming his 
conviction for armed robbery. The 

opinion of the Court of Criminal Appeals 

ia Ross v. State, 717 P.2d 117
(Okl.Cr.App. 1986). While the principal



2

issues presented to this Court involve 

proceedings during jury selection, an 
understanding of the state's case against 

the defendant on guilt is also necessary 
for a resolution of these issues. 

Therefore, what follows is a statement of 
the facts adduced at trial. References 

to transcript page numbers therein refer 

to the trial transcript. Thereafter, we 
set out certain matters which transpired 

during voir dire which we believe 
pertinent to consideration of the 

questions presented herein.
STATEMENT OF THE PACTS 

Trial Evidence
During the early morning hours of 

January 5, 1983, Debra Jean Sandefur was 

working as a night clerk/bookkeeper at 

the Los Cuartos Inn located at 1100 

Highway 34 in Beckham County, Oklahoma 

(Tr. 563, 573). As Ms. Sandefur sat in 

the office balancing the books and making



the daily deposit, a young black man

wearing a light gray windbreaker knocked 

at the door (Tr. 574). Ms. Sandefur got 
up, unlocked the door, opened it slightly 
and asked the young man if she could help 

him (Tr. 575). The man asked about the

price of a room and Mrs. Sandefur 
responded that the price was $25.00 plus 
tax (Tr. 575). Because the young man

hesitated for a moment, Ms. Sandefur 
referred him to the Royal Inn accross the 

street, which had lower rates (Tr. 575). 

The man smiled and stated that he would 
have to go and talk to his girlfriend and 

see if she wanted to spend the night

anyway. Meanwhile, Ms. Sandefur thought 
it strange that she could hear a car 
running but could not see one.

Approximately ten minutes later, 
which was around 2:00 a.m., as Ms. 

Sandefur concluded her paper work and had 

closed the office door almost all of the 

way, she heard the door rattle as she was



4
walking toward the kitchen to eat her 
lunch (Tr. 576) . The young man had
returned. As he smiled and waved, Ms. 

Sandefur went and answered him through the 
closed door (Tr. 576). The. man replied 
that his girlfriend wanted to stay and Ms. 

Sandefur then unlocked the door. As she 

walked back toward the front desk in the 

office, the man grabbed her from behind, 
placed his fist to her neck, poked her in 
the back and said, "This is a gun. If you 

don't do what I say I'll shoot you* (Tr. 

577) . He then added, "This is a hoi-, 

this is a robbery. Do what I say or I'll 

shoot you.* Although he had an object 
protruding out of his pocket, Ms. 
Sandefur did not actually see a gun (Tr. 
577) .

During the time that the man wearing 

the gray windbreaker was ordering Ms. 

Sandefur to do as he said, another man, 

whom Ms. Sandefur identified in court as 

the defendant (Tr. 618), entered the



5
office (Tr. 578). The defendant was 
dressed in black pants, a black shirt and 

he wore a black scarf on his head. After 
the man in gray had twice asked where was 
the money, the defendant stated to Ms. 

Sandefur, "You better tell the truth or 
I'll kill you" (Tr. 579).

Ms. Sandefur told the men that the 

money was in the back office, and as they 
went to get it they noticed that the door 

was partly closed and a light was on back 
there. Then they stopped and asked Ms. 

Sandefur if anyone was back there. After 
she assured the men that no one was in the 

back office, they became somewhat upset 
and warned her that she had better not be 

lying (Tr. 580).

When they reached the back office, 

Ms. Sandefur showed the men the file 
drawer containing the money bags and they 

ordered her to remove them (Tr. 582) . 

After she complied with that demand, one 

of the men ordered her to get down on the



6
floor and keep her head down. As she 

followed this instruction, her glasses 

fell off. When she reached for them, the 
man in the gray jacket put his foot on the 

back of her head and ordered her to stay 
down or they would kill her (Tr. 582). As 

the men exited the office, the defendant 

again admonished Ms. Sandefur to keep her 
head down or else (Tr. 583).

Within a moment after they had exited 

the office, Ms. Sandefur heard someone 

hit the door leading to the cloakroom. As 

she moved her foot, one of the men yelled, 

"just stay down" (Tr. 585). At that time, 

Ms. Sandefur was somewhat puzzled as to 
how the men knew she had moved her foot 

until she observed them watching her 
through the window in the kitchen that 

looks into the kitchen (Tr. 585).

After hearing some movement at the 

door, Ms. Sandefur then heard three shots, 

which caused her to become more 

frightened because she could not



7
understand why the men shot since they 
had already frightened her enough (Tr. 

586). However, she soon realized that 
someone had been shot (Tr. 568). Because 

the local police usually made rounds, she 
thought one may be involved. As she 

started to stand up, she heard more sounds 

and became more frightened (Tr. 587). The 

ensuing quietness increased her suspicion 
that a police officer had been shot (Tr. 

587). .To confirm that suspicion, she 
crawled to the office door, opened it, 

went to the counter area and peeked over 

the top. From her vantage point she 
observed the back of a police car, with 

the door open and an officer laying on the 
ground (Tr. 590). she did not see the two

men, one of whom was the defendant (Tr. 
590) .

Ms. Sandefur then returned to the 
office, closed the door, called the 

Police and reported the robbery and the 
shooting (Tr. 590). At the request of the



8
officer on the phone, Ms. Sandefur went 
to look at the officer who was shot (Tr. 

591) . She observed that he was bleeding 
from his head and she reported this to 

the dispatcher. Meanwhile, the other 
phones in the office started ringing. 

Despite the dispatcher's efforts to keep 
Ms. Sandefur on the phone for her safety, 

Ms. Sandefur attempted to aid the wounded 

officer who was lying on the ground, face 

down and breathing irregularly (Tr. 592- 
593) .

Meanwhile, Elk City police officer 

James B. LaParlette, along with several 
other police officers, responded to the 

call from Ms. Sandefur at approximately 

2:08 a.m., three minutes after it was

placed (Tr. 626-628). He and officer 
Clyde E. Davis, also from the Elk City 

Police Department, observed the wounded 

offi-CBTf Steven Mahan, lying facedown, 
bleeding profusely from his head and 

mouth (Tr. 631). Because the ambulance



- 9 -

had not arrived (Tr. 630), and because 

the wounded officer had stopped breathing 
and his pulse had stopped (Tr. 595), 

Officers LaFarlette and Davis decided to 
cancel the request for an ambulance and 

transport Officer Mahan to a hospital in 

one of the patrol units. Officer 
LaFarlette, accompanied by Ms. Sandefur, 

drove the wounded officer to the Elk City 
Community Hospital emergency room (Tr. 
631) .

While at the hospital, Officer 
LaFarlette learned that the wounded 

0^ ^ cer'3 service revolver was missing 
(Tr. 632). Officer LaFarlette checked the 
patrol unit, but did not find the missing 

gun. He then remained at the hospital 

until his comrade was transported by 

ambulance enroute to Oklahoma City (Tr. 
634).

While enroute to Oklahoma City, the 

wounded officer lost his pulse and was 

taken instead to El Reno Hospital where

i t

Li



• iw
 

K'-1
1 .•■

10
resuscitation efforts failed to revive him 
(Tr. 638-640). At approximately 5:40 a.m. 
hhat day, he was pronounced dead by Dr. 

Kenneth L. Preacher (Tr. 643) . The doctor 

felt the wounded officer had died from 
gunshot wounds to the head (Tr. 644).

Meanwhile, Officer Davis secured the 
crime scene (Tr. 650—653). He and several 

other officers at the scene had received 
descriptions of the suspects. Another of 

the officers there began a search of the 

parking lot area for the suspects (Tr. 
665).

The description from the dispatcher 
described one of the men as approximately 

five foot, eleven inches; wearing dark 
clothe3, including a black shirt, black 

slacks and some type of black scarf around 

his head; and having a very thin face 

(Tr. 667). The other man was described as 

approximately five foot, eight to nine 

inches; wearing a gray quilted jacket 

having a shiny texture, dark slacks and



11
dark gloves (Tr. 667). This suspect was 

also described as wearing a goatee (Tr. 

667) . This dispatch was broadcasted to 
all police officers who were listening to 
their radio (Tr. 669).

One of the officers who received a 
call about the shooting of an officer and 

a robbery in Elk City was Mark Lumpkin, 

the patrol supervisor for the Clinton 
Police Department (Tr. 695-697). As a 

result,' he assigned positions to each of 
the men on his shift to cover the exits 

from the freeway into Clinton from the 

West (Tr. 697) . He and his partner took 

the exit at Interstate 40 and Highway 183 
at the south side of town (Tr. 697-698).

At approximately 2:26 a.m. that same 
day, Officer Lumpkin observed a 1976 

white Buick LaSabre with an unknown 

number of occupants coming from the west 

on Interstate 40 and exit on Highway 183 

(Tr. 698-700). Because the vehicle had a 

defective tail light and an unsafe



- 12
windshield, he stopped u  on , 
violation (Tr. 698-701).

DP°n St°PPing the vehicle, officer
umpkin observed the driver Qf ^

vehicle, whom the officer b oricer knew personally
as Mitchell Hender^nrerson, Jump out Qf fche
car from the driver'sr s side and walk toward

officer (Tr. 702). However, at the
officer request, Henderson, whQ
wearing a qrav s .

7 3acket' stopped and
remained in *.u-the car. At that ^

Lumpkin observed that there were
tWO other occupants in thf>in the stopped
vehicle (Tr. 702). Because the officer
““  very familiar ^
teputation for carrvi„carrying weapons, he
requested the • „tne individual on the
Passenger's side to exit t-hexit the stopped

(Tr. 703). This individual was
“*«ing a black shirt, black pants and

(Tr. 703). Because the door on the
senger's side waa jaramed( t(]ls

lVldUal ®Xited fro“ the driver's side.



13
As the second passenger exited the 

vehicle, Officer Lumpkin recalled the 
information previously given to him 

concerning the description of the suspects 
in the dispatch from Elk City (Tr. 704). 

He then advised the three men to place 
their hands on the car (Tr. 704) . The 

three men were frisked, placed under 

arrest and read their Miranda rights. 

During this time several other police 
officers arrived on the scene as backup. 

When the man dressed in black clothing 
was frisked, Officer Lumpkin removed an 

unloaded Bauer .25 caliber automatic from 

the man's pocket. At trial, the officer 

identified the defendant as that
individual (Tr. 706-708).

A search incident to that arrest 
resulted in the seizure of two brown bank 

bags identified as being similar to the 
ones taken from the Los Cuartos Motel 

(Tr. 581); a black jacket worn by the

defendant; a gray jacket worn by



*#%£££

, w

- 14 -

Henderson; a Smith and Wesson 66 stainless 
.357 Magnum, having the same serial 

number as that carried' by Officer Mahan, 
the deceased; a loaded .25 caliber pistol 

and some marijuana found in the vehicle 
(Tr. 719-725).

The men were subsequently transported 
from Clinton to Beckham County where they 

were charged with Murder. Later that same 

morning around 4:00 a.m., the defendant 

made a taped statement after he had been 

fully advised of his constitutional 
rights (Tr. 882). Initially, he admitted 

the robbery, but denied having committed 
the murder. Rather, he claimed an 

unidentified individual appeared at the 

scene and killed the officer. However, 

when confronted with the accusation that 

he was lying, the defendant admitted 
shooting the officer (Tr. 915-919).

On the following day, the body of 

Officer Steven Mahan was transported to 

Oklahoma City where an autopsy was

I ;



15
subsequently performed (Tr. 942) . The 
results of that autopsy revealed that 
Officer Mahan died from multiple gunshot 

wounds to the head (Tr. 954). The forensic 

pathologist recovered the three bullets. 

He also found gun powder residue in the 
wound tracks (Tr. 957).

The bullets removed from the victim's 
head were sent to the Oklahoma State 
Bureau of Investigation (O.S.B.I.) 

laboratory where ballistic tests confirmed 

that they were definitely fired from the 

weapon which was seized from the 
defendant at the time of his arrest (Tr. 
937-940) . At trial, the ballistics expert 

testified that, in his opinion, the 

officer was shot at a very close range, up 
ho six inches. The basis for this 

conclusion rests on the fact that there 

was gun powder residue found in the wound 

track and the weapon in question would 

not leave residue at a distance of more 

than 24 inches (Tr. 942).



Various items of clothing seized from 
the defendant and the co-defendants were 
submitted to O.S.B.I. laboratory for 
tests and comparisons. All of the shoes, 

including those worn by the defendant, 

were consistent with plaster casts of 
footprints made at the scene of the crime 
(Tr. 813-820).

In recreating the surrounding facts 
and circumstances which lead to the 

robbery of the Los Cuartos Inn and the 

murder of Officer Steven Mahan, who 
unexpectedly arrived at the scene, the 

State called numerous witnesses in its

, including the two co- 
defendants whose memories had supposedly 
lapsed. The defense called no witnesses in 

its case—in—chief. Rather, the defense 
presented a motion for a directed verdict 

at the end of the State's case. When the 

motion was denied, the defense rested. 

After closing arguments, the jury returned 

v®rdicts of guilty on both counts.



17
During the punishment stage of the 

trial, the State presented evidence that 

the defendant had previously been

involved in a robbery-homicide (Tr. 1030-
1039). The defense presented the
testimony of the brother of the

defendant. The brother related how the 

seven siblings had grown up with the 

parents separating when the defendant was 

very young. The brother also testified 
that he had seen the defendant earlier on 
the night in question. The defense also 

presented the testimony of a minister who

had met and counseled the defendant in 
jail.

After closing arguments and
deliberation, the jury sentenced the
defendant to death after finding five
aggravating circumstances. These were:
(1) the defendant knowingly created a risk 

°f deatil to more than one person; (2) the 
^rder was especially heinous, atrocious, 

°C cruel; (3) the murder was committed



foe the purpose of avoiding or preventing 
a lawful arrest or prosecution; (4) the 

existence of a probability that the 
defendant would commit criminal acts of 
violence that would constitute a 
continuing threat to society; and (5) the 

victim was a law enforcement officer in 
the performance of his duties.

Voir Dire of Juror Huling 

During the voir dire of Juror Huling, 
which forms the basis for defendant's 
argument herein, the prosecutor asked the 
juror whether, if he felt the 

circumstances appropriate, he could 
recommend a sentence of life in the 

penitentiary. The juror stated that he 

could. Joint Appendix (hereinafter J.A.) 
17. The prosecutor next asked if Mr. 

Huling, because of the type of the crime, 

or because of something in the law or 

evidence that he found aggravating, could 

recommend a sentence of death. Mr. 

Suling answered in the affirmative (J.A.



17). Defense counsel during his voir 
dire, asked Mr. Huling to assume that he 
was sitting on the jury and the jury 

convicted the defendant of first degree 
murder and that the judge informed him of 

the law concerning the possibility of 
life imprisonment or a death sentence 
would the juror promise counsel that he 

could look at both alternatives. Mr.
Huling answered "yes’ (J.a . 18). Then,

defense counsel asked Mr. Huling if just 
because he found him guilty he would not 
necessarily give him the death penalty. 
The juror answered yes (J.A. 18).

Apparently surprised, defense counsel 
asked again if the jury found the 

defendant guilty then in the juror's own 
mind would he give him the death penalty 
and the juror answered yes. He answered 

that he would not consider anything else 

(J -A. 18) . The juror told defense counsel 

that he had no notion in his mind whether 

°r not the defendant was guilty (J.A.



20
19) . Defense counsel challenged Mr. 
Huling for cause and that challenge was 

overruled. Thereafter/ defense counsel 
excused Mr. Huling by exercising his 

sixth peremptory challenge (J.A. 19). 

Jurors accepted for cause by the defense.

During the voir dire, defense counsel 
accepted or passed for cause each of the 
twelve jurors who sat on the trial jury. 

Juror Hammons (Tr. 86), Juror Scrivner 
(Tr. 124), Juror McCaskill (Tr. 155), 

Juror Tucker (Tr. 178), Juror Moore (Tr. 
195-96), Juror West (Tr. 252), Juror 

Barker (Tr. 347) , Juror Robertson (Tr. 
356), Juror Jackson (Tr. 410), Juror 
Whitson (Tr. 425), Juror Scroggins (Tr. 

438), and Juror Harrison (Tr. 475).

SUMMARY OP THE ARGUMENT
This Court has repeatedly held that 

peremptory challenges ' are not of 

constitutional origin. Some members of 

this Court have suggested that peremptory 

challenges should be eliminated entirely



21
from criminal cases. While the 
Constitution surely secures the basic 
right to an impartial jury, it does not 

secure a right to peremptory challenges 
as an indispensible means to that end. 

Therefore, because Defendant passed for 

cause every juror who finally sat on his 
case, Defendant was given a 

constitutionally fair trial by 
"indifferently chosen" jurors.

The • Oklahoma statutes allowing 

peremptory challenges do not create a 

substantial and legitimate expectation 
that a criminal defendant will not be 

deprived of life or liberty based upon the 
exercise of his peremptory challenges. 

Thus, the Fourteenth Amendment does not 

protect the statutory right to peremptory 

challenges. The Defendant and the state 
were each granted an equal number of 

Peremptory challenges at trial and the 

trial court's ruling on Defendant's 

challenge of Mr. Huling was no more

l

Mi!

!; ! iH



oa m asm, m m m

-  22  -

"arbitrary’ than any other spur-of-the- 
moment trial ruling. The proper focus of 

inquiry should be the impartiality of the 
jury finally seated, and not intermediate 
events leading up to the seating of the 
jury.

While we doubt that any 

constitutional error was committed during 
jury selection, if such error occurred it 

was harmless beyond a reasonable doubt 
Defendant's case was tried to an' 

impartial jury and Defendant was ably 

represented by counsel. His factual guilt 
was fairly and reliably determined. 
Defendant received a fair trial, and 

that, rather than a perfect trial, is his 
constitutional due.

PROPOSITION T
p e r e m p t o r y c h a l l e n g e s a r e n o t c o n­
s t i t u t i o n a l l y REQUIRED.
This Court has repeatedly held that 

fcremptory challenges are not of 

Constitutional origin. Gray_____ y.



- 23 -
Mississippi, 431 U.S. ___, ___ , 107 S.Ct.

- •' ^  L.Ed.2d 622, 636 (1987) (citing
Batson v. Kentucky. 476 U.S.

(1986)); Swain ?, Alabama. 380 U.S. 202, 
219 (1965) and Stilson v. United States..
250 U.S. 583, 586 (1919). See also.
United States v. Wood. 299 U.S. 123, 145 

(1936) (citing Stilson. supra. "There is 

nothing in the Constitution of the United 

states which requires the Congress to 

grant peremptory challenges to defendants 
in criminal cases; trial by an impartial 

jury is all that is secured. The number 

of challenges is left to be regulated by 

the common law or the enactments of 
Congress.■).

Indeed, in his concurring opinion in 
Batson. supra, Justice Marshall argued 

for the complete elimination of 

Peremptory challenges in criminal cases 
as the only means suitable for ending 

racial discrimination in jury selection. 
In doing so, Justice Marshall noted:

I Mil

III

: i:



- 24

that h thoC0Urt has repea tern 
challenge16 ;s right of d*y stated
™f9nitude, and0* o£ =°nstitut?tOCy 
altogether „ffh ma5' be withh"?!
constitutionaT th ut irapairinathh ldjury and -ff guarantee of the
2SiledJstatetlr hrial. L e  ?artial

Batson gun^ffita, 476 0>s>
L.Ed.2d at 96 —
his sUgge3tlon fJ U3^ e Marshail based

Peremptories in part * ellminahion of 
opinion of Just ^  th6 dl— tl„g

Chi. Juatlc : r  GOldb" 9' « * " -  *

*  ^ - ^ r a: : u: r Dou9ias/
,19SS)' in “hich JU3tice so; s;  2 02 ' 244 
that lf )( Goldberg argued

iC were necessary to 
®hs°lute ohoice betwsen J  an
1#tand- t  to have a . 8 ri9ht 0f 0
hhformity wlth JUry chosen in
fifteenth a 6 re<?Uireinents °* the
h o n  e pe dm6nt ^  ^  to
»*ls a r —  Constitution

08 °f the for”ar. Batson,

. !



25
su£ra, 476 U.S. at ___, 90 L.Ed.2d at 94,
Marshall, J. concurring.

Taking [as a given] the 
pronouncements of this Court and various 

of its Justices as establishing that the 
Constitution guarantees the right to 
trial by an impartial jury but does not 

guarantee the right to peremptory 
challenges we move to two of this Courts 

more recent pronouncements explaining, as 

nearly as is possible, the constitutional 
guarantee of an impartial jury. In 
Batson v. Kentucky, 476 U.S. ___, ,

90 L.Ed.2d 69, 80—81 (1986), this Court
stated:

"The very idea of a jury as a 
body. . . composed of the peers or 
equals of the person whose rights it 
is selected or summoned to determine; 
that is, of his neighbors, fellows, 
associates, persons having the same 
legal status in society as that which 
he holds." Strauder, supra, at 308, 
25 L.Ed. 664; see Carter v. Jury 
Commission of Greene County. 396 U.S. 
320, 330 (1970). The petit jury has
ocupied a central position in our 
system of justice by safeguarding a



- 26 -
person accused of crime against the 
arbitrary exercise of power by 
prosecutor or judge. Duncan v 
Louisiana, 391 U.S. 145, 156 (1968)!

°n the venire must be indifferently chosen," to secure 
the defendant's right under the 
Fourteenth Amendment to "protection 
of life and liberty against race or 
color prejudice." Strauder. suora 
at 309, 25 L.Ed. 664;!-------- — E—

This Court has also recently stated:

In our view, it is simply not 
possible  ̂ to define jury
impartiality, for constitutional 
purposes, by reference to some 
hypothetical mix of individual 
viewpoints. Prospective jurors come 
from many different backgrounds, and 
have many different attitudes and 
predispositions. But the
Constitution presupposes that a jury 
selected from a fair cross-section 
of the community is impartial, 
regardless of the mix of individual 
viewpoints actually represented on 
the jury,^ so long as the jurors can 
conscientiously and properly carry 
out their sworn duty to apply the
law to the facts of the particular 
case.

Lockhart v. McCree. 476 U.S. ___, ___,

106 S.Ct. 1758, 1770, 90 L.Ed.2d 137,
154-55 (1986).

*
M



- 27 -

It is plain on the face of this 
record that the defendant received a 
trial by jurors who were "indifferently 
chosen." Defense counsel passed each and 
every juror who heard the case for cause. 

Trial counsel did not request an 
additional peremptory challenge to 
replace the one used on Mr. Huling and 

did not complain to the trial judge that 

he had improperly been required to use a 
peremptory to excuse Mr. Huling. Trial 

counsel's only complaint about the jury 
was that it did not contain any blacks 

(J.A. 25). However, no complaint is made 
before this Court that blacks were 

improperly excluded from the venire or 

from the trial jury. Likewise, no 
argument is made here that the jury was 

not selected from a fair cross-section of 

the community. This jury is entitled to 

the presupposition of impartiality 

because it was chosen from a fair cross- 

section of the community, each and every



29
(1968), and Lutwak v. United States. 
344 a.S. 604, 619 (1953).

. McDonough Power Equipment v. Greenwood. 

464 U.S. 548, 553 (1984). The defendant 
cannot say, and has not argued before 

this Court, that he was denied the 

"touchstone of a fair trial", meaning an 
impartial trier of fact meaning a jury 

capable and willing to decide the case 

solely on the evidence before it. Id. 464 
U.S. at 554. He had a free and 

unhampered voir dire permitting him to
examine each juror for possible biases,
known and unknown, and, when his
challenge for cause was overruled
exercised one of his peremptory
challenges to strike Juror Huling.

It is arguable that Juror Huling 
should have been stricken for cause. 

However, Juror Huling's responses 

regarding his ability to vote for either 

a life sentence or the death penalty were 

ambiguous. He informed both the



am aasTasisn

- 28 -

juror unobjected to by the defense, and 
because the jurors could conscientiously 

and properly carry out their sworn duty 
to apply the law to the facts of the 

particular case. Lockhart, supra, 90 
L.Ed.2d at 154-55.

The statutory right to exercise 
peremptory challenges is certainly an 

important means to the constitutionally
required end of a fair and impartial
trial. However, it is the end of
impartiality that the Constitution
requires, not the means of peremptory
challenges. Defendant's proposed rule 

would serve to constitutionalize each and 
every means employed toward that 

worthwhile end, whether or not the end 

was actually achieved in a given case.

This Court has long held that "'[a 
litigant] is entitled to a fair 
trial but not a perfect one,* for 
there are no perfect trials." Brown 
v. United States, 411 U.S. 223,
231-232 (1973), quoting Burton v.
United States, 391 U.S. 123, 135



30
prosecutor and the defense lawyer that he 
could consider either punishment. Then, 

unaccountably, he told the defense 

attorney that he would consider only the 
death penalty should the defendant be 
convicted. The better course might have 

been for defense counsel or the trial 

judge to inquire further of Mr. Huling to 
clear up this confusion.

However, while Mr. Huling's state of 
mind was ambiguous, one thing was not. 

The twelve jurors who sat on the 

defendants case were unambiguously passed 
for cause by defense counsel. He was thus 

given a trial by jurors "indifferently 
chosen" who could hear the evidence and 
do their duty according to law. No 

improper juror sat in the defendant's 

case and no proper juror was wrongly 

excluded. The right to challenge is the 

right to reject, not to select a juror. 
Ex Parte Spies, 123 O.S. 163, 168 (1887).

If from those who remain an impartial



- 31 -

jurY is obtained the constitutional right 
of the accused is maintained, id. 123 u.S 

at 168. Therefore, the inquiry is 

confined to rulings on challenge to jurors 
who actually sat at trial, id. 123 u.S. 

at 168. Therefore, the defendant received 
the impartial jury trial which is at the 

heart of the Sixth Amendment guarantee.
Some language in Swain v. AT 

380 U.S. 216, 219 (1965), states that the 
denial or impairment of the right to 

peremptory challenges is reversible error 
without a showing of prejudice citing 
three earlier cases from this Court. Two 

of those cases were federal prosecutions 
and the third was a civil case. None 

rested on constitutional grounds. First, 

— wia— — United States. 146 U.S. 370 
(1892), reversed a conviction in which 

the defendant was not permitted to be 

Physically present with the jurors while 

exercising his peremptory challenge and 

Was re<3uired to exercise those challenges

1

I

|H:»!',i



32

a!;
i

without knowledge of .
98 °f whl=h jurors had

een challenged by the* °y the prosecution.
°°nd' in ^ ^ L ^ n i ^ S t a t e s ,  163  

D‘S ^ “ 0 (1396), this Court revecsed a

conviction in which the defendant was not

f i t t e d  to exercise the number of
peremptory challenges required by
statute. Finally, the Swain court relied

^  ^ ^ l a d o ^ n d ^ Q t ,  Fe Rai1,„,
---- Shane- 157 rr c ,,0u.S. 348 (1895), in

WhiCh thS statutory provision for
| eXerClsin3 Peremptory challenges was

violated when the trial court followed a
contrary local rule or practice. We

-Pectfully submit that nothing i„ these
three older cases, or in g •r ln S w a m  itself,
undercuts the

ort repeated 
Pronouncements, reaffirmed only recently,

at Pere”Pt°ry challenges are not of
institutional origin m e  eU 9 n* indeed, Swain
3elf recognized that 

chan Peremptory

r , , M - ^

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-fy

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•I.

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33
stated, a practice may be widely, even 
universally, employed and still not be 

enshrined in the Constitution as the 
fundamental law of the land.

PROPOSITION II

D E P R I V E D  o p

The Defendant concedes that this 
Court has never held peremptory jury
challenges to be guaranteed by the
Constitution. „ *The Defendant
conspiciously omits to include in his 

brief the authority cited above which 

directly holds that peremptory challenges 

ana not constitutionally required. 
However, recognizing that this Court has

never held peremptory jury challenges 

guaranteed by the Constitution, 
Petitioner argues that the Oklahoma 

statutes providing for peremptory 

challenges create an interest in life or 
liberty that is protected by the Due 

Process Clause of the Fourteenth



34
Amendment. The Defendant relies 
principally on Hicks v. Oklahoma. 447 

343 (1980).

That case is readily distinguishable, 
however. In Hicks_ the defendant was tried 

and convicted of unlawfully distributing 

heroin after two former convictions for 
two felonies. Id^ 447 U.S. at 344. After 

Hicks received a 40 year sentence, the 

habitual offender statute under which he 

had been sentenced was declared 

unconstitutional by the Oklahoma Court of 

Criminal Appeals. Therefore, Hicks sought 

to have his 40 year sentence 
set aside in view of the 

unconstitrtionality of the sentencing 
provision. Id*. 447 U.S. at 345. The 

Oklahoma Court of Criminal Appeals 

declined to set the sentence aside 

reasoning that Hicks was not prejudiced 

by the impact of the invalid statute 

because his sentence was within the range 

of punishments that could have been

ill
I j i l-

ill
If
*-■. I

ifH;I4
i fi !I ': - 1 

1

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(i.l 
ii !

i' ii 8 Ii
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‘j:
•' 11 •fill

In

Ii';



- 35 -

imposed in any event. This Court granted 

certiorari to consider Hicks' contention 
that the state had deprived him of due 
process of law guaranteed to him by the 
Fourteenth Amendment. id. 447 u.S. at
345.

In reversing the Oklahoma Court of 

Criminal Appeals decision, this Court 

noted that by statute in Oklahoma a 

convicted Defendant is entitled to have 
his punishment fixed by a jury. Id. 447 

U.S. at 345. Because if the jury had 

been properly instructed, they could have 

imposed any sentence of "not less than 10 

years", this Court found the possibility 
that the jury would have returned a 

sentence of less than 40 years was 
substantial. IcK 447 U.S. at 346. The 

Court went on to hold that Hicks had a 

substantial and legitimate expectation 

that he would be deprived of his liberty 

only to the extent determined by the jury 

in the exercise of his statutory

: !



- 36 -

discretion and that expectation was a 
liberty interest preserved by the 

Fourteenth Amendment against arbitrary 
deprivation by the state. IcL 447 ti.S. at

346. In consequence, the Court found 
that the right to have a jury fix the 

sentence in the first instance is 

determinative, at least as a practical 

matter, of the maximum sentence that a 
defendant will receive. Id^ 447 U.S. at

347. Because the state appellate court 

had not proported to reconsider the 

appropriateness of the 40 year sentence 
but had simply affirmed the sentence, the 

State had deprived the defendant of 

liberty without due process of law. id. 
447 U.S. at 347.

We believe the crucial distinction 
between this case and Hicks lies in the 

fact that the defendant Hicks was 

sentenced by an improperly instructed 

jury which, if properly instructed, could 

have given a substantially shorter



37
sentence. Thus, his elemental physical 
liberty was potentially at stake for an 

indeterminate but substantial period of 
years. The Defendant in the present case 
did not have such a "substantial and 
legitimate expectation" that his guilt or 

punishment would be affected by the 

exercise of one peremptory challenge. 
Thus, the statutory provision of 

peremptory challenges does not create the 

sort of liberty interest protected by the 

Fourteeth Amendment. If the contrary were 

true, we suggest this Court would not 
have repeatedly and recently pronounced 

that peremptory challenges were not of 

constitutional origin, because the various 

state and federal statutes governing 
their exercise would have already have 
been deemed to create "liberty interest" 

protected by the Fourteenth Amendment.

Defendant's argument is nothing less 
than an invitation to declare, piecemeal, 

each and every provision of criminal



- 38 -

procedure to be constitutionally required. 
It is an invitation which we respectfully 

suggest this Court should decline. Once 
the Court embarked on such a road it would 

be confronted with ever multiplying and 
endless litigation over the

constitutional ramifications of trial 
procedures heretofore thought only to be 

matters of state concern. We could see no 

principled reason why the trend would not 

spill over to constitutionalize the 
Federal Rules of Criminal Procedure as 

well. The distinction between
constitutional law as the limited body of 

fundamental values of our society and 
procedural law would be blurred and the 

fundamental law of the land would be 

hopelessly trivialized. Such a result is 
neither desirable nor necessary.

We must also take issue with the 

Defendant's repeated assertion that he 

was "arbitrarily" deprived of a 

peremptory challenge. The trial judge's

i!
i-1 :

t,

2»i.



39
ruling on the challenge for cause for 
Juror Huling was no more "arbitrary" than 

any spur-of-the-moment ruling required 
from any trial judge. Mr. Huling had 

given contradictory answers to the same 
questions. As noted above, Mr. Huling 
told the prosecutor that he could
consider both a life sentence and the 

death penalty if the defendant were 
convicted. He initially told the defense 

counsel the same thing. Then, 

unaccountably, Mr. Huling told defense 

counsel he would only consider the death 

penalty. The trial judge, better able to 

view Mr. Huling’s manner and demeanor 
than can we on the cold paper record, may 

have been convinced that Mr. Huling was 
merely confused. Having told both the 

prosecutor earlier that he could consider 

both appropriate sentences it is not
f

unreasonable to conclude that Mr. Huling 

became confused by defense counsel's 
continued questioning. However, assuming



afthipgrtffiagaf

- •

- 40 -

the Defendant’s view of the facts, he 

exercised a peremptory challenge and 
excluded one juror he truly needed to 

exclude. In a sense, it was the best spent 
peremptory challenge that was used.

We also must disagree with the 

Defendant’s characterization that he lost 
a peremptory challenge by operation of an 

established state procedure" within the 
meaning of Logan v. Zimmerman Brush Cn. . 

455 U.S. 422 (1982). First, this argument 

presupposes incorrectly that criminal 

defendants have a constitutional right to 
peremptory challenges. Because no such 
right exists, there is no constitutional 

requirement of due process before that 
right is affected. We assume the result 

sought by the Defendant would be notice 

and an opportunity to be heard before a 

criminal defendant could be "improperly 

deprived" of a peremptory challenge 
during voir dire. Such a result borders 

on the absurd and ignores the fact that

i\

•: i ■ i



41
both the Defendant and his trial counsel 
were present before the court when it 

ruled on the challenge for cause of Mr. 

Huling. Any necessary argument could 
have been made at that time to give the 
Defendant the "process" that was due 

before requiring him to use a peremptory 
challenge.

We are very uncomfortable at the 

process of the wholesale importation of 
the civil rights law under 42 D.S.C. 

S 1983 into capital criminal litigation. 

We believe it would be unnecessary and 

inadvisable to place an overlay of § 1983 
law on top of the already well 

established principles of criminal 

procedure. However, in order to meet the 

Defendant's arguments based on Logan v. 

Zimmerman Brush Co., supra, we offer 

these brief comments. The "established 

state procedure* argument of the 

Defendant only makes sense if we assume 

that it is the "established state



- 42 -

procedure" to improperly deny challenges 

for cause and then require use of a 
peremptory challenge. This is manifestly 
not the case. While we are unwilling to 
concede that the trial judge's ruling on 
the challenge for cause was 

constitutional error rather.than error in 

the common law of peremptory challenges, 

if it were such constitutional error it 
would manifestly not be "established 

state procedure." Quite the contrary, it 
would be an error resulting from the 

unauthorized failure of the trial judge 

to follow the established

state procedure, to-wit, the correct 
granting of challenges for cause. It 

would certainly not be practical for the 
State of Oklahoma to provide notice and a 

predeprivation hearing before a trial 

judge made an incorrect ruling. However, 

the state did provide some process whereby 
the alleged error could be corrected. 

First, trial counsel could have further



43
argued the matter immediately. Secondly, 

under this theory the constitutional 
error would be the improper seating of an 

unqualified juror. To correct this 
mistake the state did have a "post- 

deprivation" procedure in the statutory 

provision establishing peremptory 
challenges. Thus, ' the Defendant had at 

his disposal, and did use, the procedure 

to correct the arguably erroneous ruling 

on the challenge for cause. Therefore, 
under Parratt v, Tavlor. 451 u.S. 527, 

542—43 (1981), there was no deprivation
"without due process of law" because the 

•state action" in the judge's arguably 

erroneous ruling on the challenge for 

cause was not complete until after the 
Defendant had used the remedial process of 

the peremptory challenge. Again, with 

some reluctance to see due process 

principles which really do not "fit" 

imposed upon criminal procedure, we note 

that the court has recently held that



- 44 -

historically the guarantee of due process 
has been applied to deliberate decisions 

of government officials to deprive a 
person of life, liberty or property.

Daniels v. Williams. 474 U.S. ___, ___

106 S.Ct. __, 88 L .Ed. 2d 662, 668

(1986) . In that case the court held that 

history reflects the tradition and common 

sense notion that the due process clause 

was intended to secure the individual 
from the arbitrary exercise of the powers 

of government and to serve to prevent 

governmental power from being used for

purposes of oppression. Id, 474 U.S. at

___, 88 L.Ed.2d at 6 6 8. In a companion
case the court reiterated that the due 

process clause of the Fourteenth Amendment 
is not implicated by the lack of due care 

of an official causing unintended injury 
to life, liberty, or property and that 

such lack of due care, even where leading 

to serious injury, does not approach the 

sort of abusive government conduct that



45
the due process clause was designed to 
prevent. Davidson v. Cannon, 474 U.S.

___, ___ , 106 S.Ct. ___ , 88 L . Ed. 2d 662,
682 (1986).

It cannot be argued that the trial 

judge's ruling on the challenge for cause 
of Mr. Huling was intentional conduct, 
abusive governmental action, or the use 

of governmental power for the purposes of 
oppression. It was simply a trial ruling 

and nothing more. Therefore, if we are 

forced to import the broader law of due 
process into the specific needs of 
criminal procedure, we must suggest that 
the allegedly incorrect trial ruling, 

being "negligent" at worst, oid not 
violate the due process clause. However, 

we respectfully suggest that cue door 

opened by Defendant in reliance upon Logan 

v, Zimmerman Brush Co., supra, should 

remain firmly closed. To cross that 
threshold would be to enter a realm 

frought with confusion and uncertainty in



46
circumstances under which litigants most 
need to know what the rules are.

Likewise, the Defendant's reliance on 
Wardius v. Oregon. 412 U.S. 470 (1973), 

is misplaced. The facts of this case do 
not present the Court with an established 

statutory scheme in which the prosecution 
enjoys a nonreciprocal benefit over the 
defense. The facts giving rise to this 

appeal arose from the use of one of nine 

peremptory challenges granted by the 

state to the defendant. Both the state 

and the defendant began the voir dire 
with an equal number of challenges. The 

defendant used all of his challenges while 

the state waived certain of its 

pereraptories. This is a case in which the 

litigants clearly "started even" and 

proceeded to the selection of an impartial 
jury which conducted a fair trial.

The Defendant next argues that, by 

granting an impartial jury only at the 

cost of impairing defense peremptory



53
that the erroneous for cause exclusion 
was harmless because the state represented 
that it would have removed the venire by 
peremptory challenge if the court had 

denied its for cause motion. The second 

theory was to treat the erroneous 

exclusion as an isolated incident without 
prejudicial effect if it could not be 

said that the ultimate panel did not 
fairly represent the community, id. 481

0#S* at ___/ 95 L.Ed. 2d at 634-3.5. In
essence, this Court decided Gray on the 
basis of the jury that was seated and not 

on the basis of the jury that might have 

been seated, sensibly declining to enter 

into speculation regarding what might have 
happened if challenges for cause or 

peremptory challenges had been 
differently employed.

Unaccountably, the Defendant herein 

appears to follow in the footsteps of the 

argument put forward by Mississippi in 

?ra%* The Defendant herein argues that



49
Our approach to this case has been 

that the jury which actually sat to 
convict and sentence the Defendant was an 

impartial jury which gave the Defendant a 
fair trial within the meaning of the 

Sixth and Fourteenth Amendments. We
believe the use of the peremptory

challenge (authorized by statute and not 

required by the Constitution) to exclude 
Mr. Huling from the jury effectively 

insured a jury which consisted of twelve
jurors passed by the Defendant for cause.
Therefore, no constitutional error was
committed in the selection of the
Defendants1 jury. -

We offer the following comments to
demonstrate, if necessary, that any
constitutional error in the selection of
the jury is harmless beyond a reasonable 

doubt. The Defendant in the present case 
robbed a motel in western Oklahoma. When 

a police officer arrived at the scene as 

a part of a routine patrol the Defendant



- 48 -

clear that the purpose of the peremptory 
challenge is to secure an impartial jury 
and a fair trial. Unlike the cases relied 

upon by the Defendant, the State of 

Oklahoma has not conditioned the exercise 
of a constitutional right, herein an 

impartial jury and a fair trial, upon the 

acceptance of an unfair burden. Nor does 

it improperly cut down on the privilege of 
an impartial jury by making the assertion 
of that privilege costly. The only 

purpose for peremptory challenges is to 

fulfill the goal of an impartial jury and 

a fair trial. Having essentially conceded 
the impartiality of the jury by accepting 

each member of the jury for cause, and 

raakiig no serious argument herein that the 

jury was biased against him, there can be 

no ground for claiming that the Defendant 

herein has been denied a fair trial.

PROPOSITION III
ANY ERROR HEREIN IS HARMLESS BEYOND 
A REASONABLE DOUBT.

iTtmill. ) 38



Lt
M

'H
jh

iX
i-

ll.
 ‘.
..

47
strikes, Oklahoma unlawfully penalized 

the exercise of his Sixth and Fourteenth 
Amendment- rights. We read in this 

argument the implicit concession that the 
Defendant was granted an impartial jury.- 

Nothing in his argument shows to the 
contrary. This argument is a curious one 
which seems to have the cart before the 

horse. The purpose of peremptory strikes 
is to secure an impartial jury. But this 
Court has repeatedly stated that the 

right of peremptory challenge is not of 

constitutional magnitude, and may be 
withheld altogether without impairing the 

constitutional guarantee of impartial 

jury and fair trial. Batson, supra, 476

U.S. at ___, S'O L.Ed.2d at 95, Marshall,
J. concurring. Thus, while conceding 

that he was granted an impartial jury the 

Defendant complains that the cost of that 

jury was the exercise of a peremptory 

challenge. But if we understand much of 

the Defendant's argument correctly, it is



50
somehow overpowered and disarmed the
officer. Then, rather than merely

*
incapacitating or taking the officer 
hostage, the Defendant shot the officer 
in the head three times

mortally wounding him. 
The Defendant was captured within minutes 
of the murder still in the company of his 

criminal accomplices. After his arrest, 

the police found Officer Mahan's pistol 
in the Defendant's possession, along with 

money bags consistent with those stolen 
from the scene of the murder. Finally, 
after being informed of his rights the 

Defendant the admitted his participation 

in the crime. The case against him was 

so damning that the Defendant does not 

bother to argue his factual innocence 

before this Court.

Strictly speaking, the court below 

did not rely upon the harmless error 

doctrine in resolving this issue. The 

Court of Criminal Appeals stated that it



was error (not explicitly stated to be 

constitutional error) to fail to remove a 
prospective juror who unequivocally 
states that he is unwilling to follow the 

law during the penalty phase by 

considering a life sentence. However, the 
Court also stated that there was nothing 
in the record to show that any juror who 

sat at the trial was objectionable there 
was no ground for reversible. Ross v. 

State, '111 P .2d 117, 120 (Okl.Cr.App.

1986). We read the language of the court 

below to mean, as we have suggested, that 
in cases in which the jury finally 

impaneled is unobjectionable, unbiased, 

and can give the Defendant a fair trial 

there is no constitutional error. 

However, because the Defendant has 

couched his argument before this Court in 

terms of the harmless error doctrine, we 
will do the same.

The Defendant relies heavily on Gray 

v. Mississippi, 481 U.S. __, 107 S.Ct.

- 51 -



..
..

- 
.

- 52 -

---  95 L.Ed.2d 622 (1987). In that case

the trial court erroneously excluded for 
cause a juror who should have been seated 
UndSr —̂ therspoon v. m i . ni ,  391 „ s

“  .... 'I;
----95 r,.Ed.2d at 631-32. Despite this

t°r» the Mississippi Supreme Court 
affirmed the resulting conviction because 
it believed the trial court was 

correcting its own error in earlier 

refusing to excuse for cause jurors 

unequivocally opposed to the death 
Penalty, id, 481 o .S .  at ____  95 L . Ed. 2d

at 632. This Court agreed that the 

excluded juror was clearly qualified to 
be seated under the law. JjL 481 D.s . a(=

---> 95 L.Ed.2d at 633. This
Court rejected the two analyses suggested 
to affirm the judgment of the Mississippi 

Supreme Court. The first such analysis 

was to consider the state’s retention of 

unexercised peremptory challenges at the 

and of jury selection as an indication

!i •! , \



- Trr-flC'̂ .

- 54 -
had Juror Huling been dismissed for
cause, the defense would have had an
additional peremptory challenge, the
exercise of which might have changed the 
composition of the jury. In making this 

argument, the Defendant makes a foray 

into the realm of the hypothetical. 
Trial counsel did not attempt to exclude 

another juror by peremptory challenge or 

ask for an additional peremptory 
challenge for that purpose. Nothing in 

the record of the jury selection 
indicates that trial counsel wished to 

peremptorily strike another juror. 

Curiously, the argument that the sixth 
peremptory could have been used on 

another juror undercuts the supposed 
tactical advantage of waiving 

the last peremptory. Brief at 18, n. 9.

In any event, unlike in Gray, the 

trial court in the present case did not 

exclude a juror who should have been 

seated. Likewise, the trial court did not

. -<



{

I
I

I

- 55 -

seat a juror who should have been 
excused. No juror was improperly seated 

and no juror was improperly excluded. 
Thus, there was no error in the 

composition of the final jury. Therefore, 
the "relevant inquiry" of Gray, that is 

whether the composition of the jury panel
as a whole could possibly have been
affected by the trial court's error, need
not be asked here. See Gray, supra. 481
U.S . at ___, 95 L.Ed.2d at 637.

This Court recently held that jury
instructions violating the principles of 
Sandstrom v. Montana. 442 O.S. 510 

(1979), may be harmless error in Rose v .
Clark, 478 U.S. ___, 106 S.Ct. ___, 92

L.Ed.2d 460 (1986) . In that case this
Court stated:

Accordingly, if the defendant had 
counsel and was tried by an 
impartial adjudicator, there is a 
strong presumption that any other 
errors that may have occurred are 
subject to harmless error analysis. 
The thrust of the many 
constitutional rules governing the



it
-V

- 56 -

conduct of criminal trials is to 
ensure that those trials lead to a 
fair and correct judgments. Where a 
reviewing court can find that the 
record developed at trial 
establishes guilt beyond a 
reasonable doubt, the interest in 
fairness has been satisfied- and the 
judgment should be affirmed. As we 
have repeatedly stated, "the 
Constitution entitled a criminal 
defendant to a fair trial, not a 
perfect one."' Delaware v . Van 
Arsdall, 475 U.S. ~at , 89 L.Ed.2d 
674, 106 S.Ct. 1431; United States
— Hastings, _s_upra, at 508-509, 76

L.Ed.2d 96, 103 S.Ct. 1974.

1 ^  478 U.S. at ___, 92 L.Ed.2d at 471.

This case is clearly entitled to the 

strong presumption that any other errors 

at trial are subject to harmless error 
anlysis. The Defendant herein was 

represented by capable counsel and was 

tried to an impartial jury, each and 

every member of which had been passed for 

cause. To say the very least:, the record 

developed at trial establishes guilt 

beyond a reasonable doubt. Therefore, the 

interest in fairness enjoyed by the



-  59 -

instructed on the burden of proving 

malice. Also, like the erroneous malice 

instruction in Rose, and unlike such 
errors as judicial bias or denial of 
counsel, any error regarding the use of 

the peremptory challenge herein did not 
affect the composition of the record and 

thus require any difficult inquiries 

concerning matters that might have been, 
but were not, placed in evidence, id. 478 
U.S. at ---, 92 L.Ed.2d at 471, n. 7.

In the present case, the Defendant 
robbed a motel at gunpoint and then 
needlessly summarily executed a police 
officer by shooting three rounds

into the officer's 
head. The proof of guilt was crushing and 

the jury found five aggravating 

circumstances to support the death
penalty. We are mindful that this Court 
has recently stated:

. harmles-error doctrine 
recognizes the principle that the



counsel); Milton v. Wainwrioht. 407 
U.S. 371, 33 L .Ed. 2d ±~ 92 S Ct
2174 (1973) (admission of confession 
obtained in violation of right to 
counsel); Chambers v. Marnnpv. 390 
U.S. 42, 52-53 , 26 L.Ed.2d 419, 90
S.Ct. 1975 (1970) (admission of
evidence obtained in violation of the 
Fourth Amendment). See also. Hopper 
^ 1- Evans, 456 O.S. ToTr~6l3-6lT772 
L.Ed.2d 367, 102 S.Ct. 2049 (1982)
(Citing Chapman, and finding no 
prejudice from trial court's failure 
to give lesser-included offense 
instruction).

- 58- -

1^. 478 O.S. at ___, 92 L.Ed.2d at 469-

70. Errors which could never be
considered harmless are those which 

either aborted the basic trial process or
denied it altogether. Id^ 478 O.S. at ___,
92 L.Ed.;>d at 470 n. 6 . Clearly, any 

error found in the present case is not one 

which aborted the basic trial process or 
denied it altogether. Instead, any error 

of the trial court which improperly 

required the use of a peremptory

challenge to exclude Mr. Huling is less 

serious than an error which, as in Rose

itself, left the entire jury incorrectly



57
Petitioner has been satisfied and 
judgment should be affirmed.

In Rose this Court listed 
previous oases which had applied 
harmless error doctrine:

the

i ts 
the

ghapman v. California. 386 0 -
&  ' l U s X  “ V l i
rejected the argument that errors°“ f
requireUt^°reversainS ̂ °of 
convictions. And since Chapman “^we 
*aY* repeatedly reaffirmed the 
principle that an otherwise valid  
conviction should not be set aside*!?
say "o^The " 9 h°°,Urt may confidentlyIons t I t - , , whole record, that the constitutional error was harmless
beyond a reasonable doubt.' Delaware

Van Arsdai i  475 0>s_ -------------S

a98sVEd'Th *674' 106 S-“ T' 1431a That principle has been applied to a wide variety of 
constitutional errors. E . g . , i d. at
Tfaiii?9 L-Ed.2d 674, 106 S.Ct. 1431 ^ai^ure Permit cross-examination 
■2°"~rn bias,;e Rumshen v
fff^2',484 c Sn. 114' 118' 78 ii.Ed.2d
curiam)*^4 (denial to
H ^ t i n a ' a 4fiitrna c) 1 gnlte^ States v.
§  Bd1^ ' al61 ,-V3- 499" bUS-509, 76'L.Ed.2d 96, 103 S.Ct. 1974 (1983)
failure** f. corament on defendant's ^  testify); Moore v. 
Illinois. 434 D.S. 220 2 2  2 -- et
H d :2d 424' 98 S.Ct. 458 (1977)
(admission of witness identification 
obtained in violation of right to



60
P^pose of a criminal trial

th% d e f e n d a n t ^ ^  °f 
5PX ted Staten

H U  (3i9 7 5f  Land'2d 141' 95 S -Ct.' 
HIP -P  t°r'theancdrimPirn°aTtper3ooeP3Usb li df e e i n g  on the u n d e r l y i n f ^ ” ^

Virtually inevitable' presence
t K *  Riddle ^f^HarSliss*'* Tcaynoc' 7TQ7n'i-----; »p° -— Harmless Error. 50

regardless ^ T T ^ '

ibuleentt'he enco"raPes litigants to 
bestirs the p u b l i c ^ 1 rid^ule^it. *f?d

Delaware v. Van Arsdan . 475 0 . s . ___ at

---» 106 S.Ct. --- , 89 r,.Bd.2d 674> 684_

85 (1986). The factual question of the

Defendant's guilt herein was fairly and 
reliably found. The Defendant does not 

even bother to argue before-: this Court 
that the jury which convicted him was in 
some way biased. Order these

circumstances, reversal of this case for 

handling of a single peremptory 
challenge to a juror would be precisely 

the sort of decision which "bestirs the 

public to ridicule" to the judicial



61

process. Neither the Constitution nor 

considerations of elementary justice 
require such a result.

CONCLUSION

For reasons set out above, we

respectfully ask the Court to affirm the

judgment of the Oklahoma Court of

Criminal Appeals.
Respectfully submitted,

ROBERT H. HENRY 
ATTORNEY GENERAL OF 

OKLAHOMA

ROBERT A. NANCE 
ASSISTANT ATTORNEY GENERAL 
DEPUTY CHIEF 

• FEDERAL DIVISION