Hammon v. State

JOHNSON, Presiding Judge,

concurring in part, dissenting in part.

I concur with the Court herein as it relates to the finding of guilt, but I dissent as to the reversal and remanding this case for resen-tencing. The Court has based its resentenc-ing on what we have come to know as “reverse Witherspoon exeludables”.

Courts have long had a problem with the automatic exclusion of jurors in a death penalty case. The Supreme Court originally said that one who “automatically” would vote against the imposition of a death penalty would be excluded from a jury panel for cause. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Supreme Court wanted to clarify the Wither-spoon decision, and did so some years later in the case of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). The Court held that a juror is to be removed from the jury panel for cause when he or she would automatically vote for the death penalty and fail to consider the aggravating or mitigating circumstances.

I agree with the State in this regard that counsel did get to ask the jurors whether they would follow the instructions regarding guilt or innocence, as well as punishment. Any irregularity was cured by this question. I would, therefore, affirm not only the judgment, but the sentence herein.