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Syllabus

MORGAN v. ILLINOIS

CERTIORARI TO THE SUPREME COURT OF ILLINOIS

No. 91–5118. Argued January 21, 1992—Decided June 15, 1992 The trial of a capital offense in Illinois is conducted in two phases, with

the same jury determining both a defendant's guilt and whether the death penalty should be imposed. In accordance with state law, the trial court conducted the voir dire to select the jury for petitioner Morgan's capital murder trial. The State requested, pursuant to Witherspoon v. Illinois, 391 U. S. 510, that the court ask the jurors whether they would automatically vote against the death penalty no matter what the facts of the case were. However, the court refused Morgan's request to ask if any jurors would automatically vote to impose the death penalty regardless of the facts, stating that it had asked substantially that question. In fact, every empaneled juror was asked generally whether each could be fair and impartial, and most were asked whether they could follow “instructions on the law.” Morgan was convicted and sentenced to death. The State Supreme Court affirmed, ruling that a trial court is not required to include in voir dire a “life qualifying” or

"reverse-Witherspoon” question upon request. Held: The trial court's refusal to inquire whether potential jurors would

automatically impose the death penalty upon convicting Morgan is inconsistent with the Due Process Clause of the Fourteenth Amendment. Pp. 725–739.

(a) Due process demands that a jury provided to a capital defendant at the sentencing phase must stand impartial and indifferent to the extent commanded by the Sixth Amendment. See, e.g., id., at 518. Pp. 726-728.

(b) Based on this impartiality requirement, a capital defendant may challenge for cause any prospective juror who will automatically vote for the death penalty. Such a juror will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require. Cf., e.g., Wainwright v. Witt, 469 U. S. 412, 424. Pp. 728–729.

(c) On voir dire a trial court must, at a defendant's request, inquire into the prospective jurors' views on capital punishment. Part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. Morgan could not exercise intelligently his challenge for cause against prospective jurors who would unwaveringly impose death after a finding of guilt unless he was given the

Syllabus

opportunity to identify such persons by questioning them at voir dire about their views on the death penalty. Cf. Lockhart v. McCree, 476 U. S. 162, 170, n. 7. Absent that opportunity, his right not to be tried by those who would always impose death would be rendered as nugatory and meaningless as the State's right, in the absence of questioning, to strike those who never do so. Pp. 729–734.

(d) The trial court's voir dire was insufficient to satisfy Morgan's right to make inquiry. The State's own request for questioning under Witherspoon and Witt belies its argument that the general fairness and “follow the law” questions asked by the trial court were enough to detect those in the venire who would automatically impose death. Such jurors could in all truth and candor respond affirmatively to both types of questions, personally confident that their dogmatic views are fair and impartial, while leaving the specific concern unprobed. More importantly, the belief that death should be imposed ipso facto upon conviction reflects directly on an individual's inability to follow the law. Pp. 734-736.

(e) A juror to whom mitigating evidence is irrelevant is plainly saying that such evidence is not worth consideration, a view which has long been rejected by this Court and which finds no basis in Illinois statutory or decisional law. Here, the instruction accords with the State's death penalty statute, which requires that the jury be instructed to consider any relevant aggravating and mitigating factors, lists certain relevant mitigating factors, and directs the jury to consider whether the mitigating factors are “sufficient to preclude” the death penalty's imposition. Since the statute plainly indicates that a lesser sentence is available in every case where mitigating evidence exists, a juror who would invariably impose the death penalty would not give the mitigating evidence

the consideration the statute contemplates. Pp. 736–739. 142 Ill. 2d 410, 568 N. E. 2d 755, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 739.

Allen H. Andrews III argued the cause and filed briefs for petitioner.

Kenneth L. Gillis argued the cause for respondent. With him on the brief were Roland W. Burris, Attorney General of Illinois, Terence M. Madsen, Assistant Attorney General,

Opinion of the Court

Jack O'Malley, Randall E. Roberts, Sally L. Dilgart, William D. Carroll, and Marie Quinlivan Czech.*

JUSTICE WHITE delivered the opinion of the Court.

We decide here whether, during voir dire for a capital offense, a state trial court may, consistent with the Due Process Clause of the Fourteenth Amendment, refuse inquiry into whether a potential juror would automatically impose the death penalty upon conviction of the defendant.

I The trial of a capital offense in Illinois is conducted in two phases. The defendant must first be convicted of firstdegree murder, as defined in Ill. Rev. Stat., ch. 38, 19–1(a) (Supp. 1990). Illinois law uses the same jury that decided guilt to determine whether the death penalty shall be imposed,' and upon conviction, a separate sentencing hearing commences to determine the existence of aggravating and mitigating factors. 19–1(d)(1). To be eligible for the death penalty, the jury must find unanimously, 19–1(g), and beyond a reasonable doubt, s 9–1(f), that the defendant was at least 18 years old at the time of the murder, and that at least 1 of 10 enumerated aggravating factors exists, 19–1(b). See, e. g., (9-1(b)(5) (murder for hire or by contract); 1 9–1(b)(10) (premeditated murder by preconceived plan). If the jury finds none of the statutory aggravating factors to exist, the defendant is sentenced to a term of imprisonment. 19–1(g). "If there is a unanimous finding by the jury that one or more

*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Robert L. Graham, Laura A. Kaster, Harvey Grossman, John A. Powell, Steven Shapiro, and Diann Rust-Tierney; and for the National Association of Criminal Defense Lawyers by Andrea D. Lyon.

The defendant may, however, elect to waive sentencing by the jury. Ill. Rev. Stat., ch. 38, 19–1d)(3) (Supp. 1990). The procedure and standards that guide a sentencing judge, 19-1(h), are identical to those that guide a jury, 19-1(g).

Opinion of the Court

of the factors set forth in subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed.” Ibid. As part of this balance, the jury is instructed to consider mitigating factors existing in the case, five of which are enumerated, but which are not exclusive. 19–1(c). The State may also present evidence of relevant aggravating factors beyond those enumerated by statute. Ibid. “If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.” 19–1(g).

Petitioner Derrick Morgan was convicted in Cook County, Illinois, of first-degree murder and sentenced to death. The evidence at trial amply proved that petitioner was hired to kill a narcotics dealer apparently competing with the El Rukns, one of Chicago's violent inner-city gangs. For $4,000, petitioner lured the dealer, who was a friend, into an abandoned apartment and shot him in the head six times. Upon consideration of factors in aggravation and mitigation, the jury sentenced him to death.

Three separate venires were required to be called before the jury was finally chosen. In accordance with Illinois law, the trial court, rather than the attorneys, conducted voir dire. People v. Gacy, 103 Ill. 2d 1, 36–37, 468 N. E. 2d 1171, 1184–1185 (1984). The State, having elected to pursue capital punishment, requested inquiry permitted by Witherspoon v. Illinois, 391 U. S. 510 (1968), to determine whether any potential juror would in all instances refuse to impose the death penalty upon conviction of the offense. Accordingly, the trial court, over opposition from the defense, questioned each venire whether any member had moral or religious principles so strong that he or she could not impose the death penalty “regardless of the facts.” App. 9, 78, 90. Seventeen potential jurors were excused when they ex

Opinion of the Court

pressed substantial doubts about their ability to follow Illinois law in deciding whether to impose a sentence of death. Id., at 9–22, 79–83, 90–94. All of the jurors eventually empaneled were also questioned individually under Witherspoon, each receiving and responding in the negative to this question or a slight variation: “Would you automatically vote against the death penalty no matter what the facts of the case were?” App. 33; see id., at 36, 41, 48, 55, 59, 64, 69, 76, 88, 97, 103.

After seven members of the first venire had been questioned, including three who eventually became jurors, petitioner's counsel requested the trial court to ask all prospective jurors the following question: “If you found Derrick Morgan guilty, would you automatically vote to impose the death penalty no matter what the facts are?Id., at 44. The trial court refused this request, stating that it had "asked the question in a different vein substantially in that nature.Ibid.

Prior to the voir dire of the three venires, the trial court had explained in general terms the dictates of Illinois procedure in capital trials, as outlined above. See id., at 24, 77– 78, 90. During voir dire, the trial court received from 9 of the 12 jurors empaneled an affirmative response to variations of this question: "Would you follow my instructions on the law even though you may not agree?Id., at 30; see id., at 38, 43, 49, 56, 60, 64, 69, 107. However, the trial court did not ask three of the jurors this question in any way. See id., at 73–77, 83–89, 94–100. Every juror eventually empaneled was asked generally whether each could be fair and impartial.? Each juror responded appropriately to at least one

2 Such questioning led to the removal for cause of one prospective juror, following this exchange:

"Q Would you follow my instructions on the law in the case even though you might not agree? "A Yes.

[Footnote 2 is continued on p. 724]

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