Hulsey v. State , 599 S.W.2d 729 ( 1980 )

599 S.W.2d 729 (1980)

DeWayne HULSEY, Petitioner,
v.
STATE of Arkansas, Respondent.

No. CR 76-125.

Supreme Court of Arkansas.

June 9, 1980.

GEORGE ROSE SMITH, Justice, on rehearing.

The petitioner has filed a detailed petition for rehearing and supporting brief, devoted for the most part to a reargument of points already made. We find no merit in the petition, but two of the points call for some additional discussion.

First, petitioner insists that we have failed to follow Supreme Court decisions holding that a prospective juror's statement of "belief" that he would vote against the imposition of the death penalty is not a sufficient cause for his exclusion from a jury for cause. It is argued that Mrs. Creamer's statement that she "believed" that she would automatically vote against the death penalty was not a positive statement, in view of her voir dire examination as a whole.

We disagree. It seems perfectly clear that Mrs. Creamer did not a first understand that the jury would have a choice between the death penalty or life imprisonment. Instead, she thought that a finding of guilty would require the death sentence. Under that misapprehension, she stated that if she believed the defendant to be guilty she would vote for the death penalty, "but I just wouldn't want to vote for it." When, however, it was explained to her that the jury would have a choice, she said: "Oh." She then replied, in response to the question whether she would automatically vote against the death penalty regardless of the evidence: "I believe I would, yes, sir, because I don't want to take a life." There is no uncertainty in that reply, which gives a positive answer, "yes, sir," and adds the reason for her position.

Second, it is argued that if we reject without discussion the petitioner's various "constitutional" arguments, mentioned in our original opinion, then the petitioner has received ineffective assistance of counsel and must be permitted to amend his petition to seek relief on that ground.

No authority is cited for this argument, nor is any authority needed to answer it. Within the vague contours of "due process of law," every contention can be framed as a constitutional right. If, for example, hearsay testimony about an immaterial question is introduced without objection, it can be asserted that a conviction based upon such testimony is a denial of due process of law. In the case at bar counsel have had about three years since our original opinion, delivered April 11, 1977, to comb the record for some semblance of prejudicial error. No violation of any fundamental constitutional right has been discovered. The petitioner appears to have been competently represented by counsel and to have received a trial fair in every respect. We are now asked to declare that trial counsel should have anticipated the frail and insubstantial constitutional questions that are now being urged three years later and should have interposed appropriate objections at the trial. If that principle were adopted, there could never be any end to a criminal prosecution in the state courts, much less to the succession of appeals to the federal courts that can be expected to follow. As we said in our first opinion on this appeal, it is simply too late for the present contentions to be raised.

Rehearing denied.

MAYS, J, would grant the rehearing. MAYS, Justice.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, rehearing denied, 393 U.S. 898, 89 S. Ct. 67, 21 L. Ed. 2d 186 (1968), the United States Supreme Court held that in capital cases only jurors who are unequivocally opposed to the imposition of the death penalty may be excused for cause. During petitioner's trial in which the death penalty was imposed Mrs. Creamer, a prospective juror, was excluded by the court during voir dire when she said that she "believed" that she would automatically vote against the death penalty. I view Mrs. Creamer's response as equivocal, especially in the context of her previous statements suggesting that she could vote for the death penalty under appropriate circumstances. Therefore, applying the principle of Witherspoon, Mrs. Creamer should not have been excluded. I would grant the rehearing requested by petitioner.