U.S. Supreme Court

ROSS v. OKLAHOMA, 487 U.S. 81 (1988)

Decided June 22, 1988

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

During the selection of the jury in his capital murder trial, petitioner Bobby Lynn Ross resorted to one of his peremptory challenges to remove a juror whom the trial court should have excused for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968). He claims that because of that fact the Sixth and Fourteenth Amendments to the United States Constitution require reversal of his conviction and sentence of death. We conclude they do not.

In the course of robbing a motel in Elk City, Oklahoma, petitioner killed a police officer. Petitioner was charged with first-degree murder, a capital offense. By statute, Oklahoma provides nine peremptory challenges to both parties in capital trials. 

The jury selection began with the drawing of 12 names from the 150-person venire. Each of the 12 was examined individually by the court and counsel. Prospective jurors not excused for cause after the voir dire were provisionally seated. If a prospective juror was excused for cause, a replacement juror was called and examined. After 12 jurors had been provisionally seated, the parties exercised their peremptory challenges alternately beginning with the prosecution. When a juror was struck, a replacement juror was immediately selected and examined in the manner described above. Once a replacement was provisionally seated, the trial court called for the exercise of a challenge by the party whose turn it was. This procedure was repeated until each side had exercised or waived its nine peremptory challenges.

Darrell Huling's name was drawn to replace the juror excused by the defense with its fifth peremptory challenge. During voir dire, Huling initially indicated that he could vote to recommend a life sentence if the circumstances were appropriate. On further examination by defense counsel, Huling declared that if the jury found petitioner guilty, he would vote to impose death automatically. Defense counsel moved to have Huling removed for cause, arguing that Huling would not be able to follow the law at the penalty phase. The trial court denied the motion and Huling was provisionally seated. The defense then exercised its sixth peremptory challenge to remove Huling. The defense ultimately used all nine of its challenges. The prosecution used only five, waiving the remaining four.

After two days of evidence, the parties gave closing arguments, the trial court instructed the jury, and deliberations began. The jury found petitioner guilty of first-degree murder. Following the presentation of evidence and arguments at a separate sentencing proceeding, the same jury found five aggravating circumstances and sentenced petitioner to death....

We granted certiorari to consider the Sixth and Fourteenth Amendment implications of the trial court's failure to remove Huling for cause and petitioner's subsequent use of a peremptory challenge to strike Huling. We now affirm.

In Wainwright v. Witt (1985), the Court held that "the proper standard for determining when a prospective juror may be excused for cause because of his or her views on capital punishment . . . is whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"  The State concedes that Huling should have been excused for cause and that the trial court erred in failing to do so. Petitioner contends that this error abridged both his Sixth and Fourteenth Amendment right to an impartial jury, and his Fourteenth Amendment right to due process. We reject both grounds offered by petitioner.

It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an impartial jury.  Had Huling sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove Huling for cause, the sentence would have to be overturned. But Huling did not sit. Petitioner exercised a peremptory challenge to remove him, and Huling  was thereby removed from the jury as effectively as if the trial court had excused him for cause.

Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat. None of those 12 jurors, however, was challenged for cause by petitioner, and he has never suggested that any of the 12 was not impartial. "[T]he 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." We conclude that petitioner has failed to establish that the jury was not impartial.

In arguing that the trial court's error abridged his right to an impartial jury, petitioner relies upon Gray v. Mississippi, 481 U.S. 648 (1987)...Petitioner relies heavily upon the Gray Court's statement that "the relevant inquiry is `whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error.'" Petitioner points out that had he not used his sixth peremptory challenge to remove Huling, he could have removed another juror, including one who ultimately sat on the jury. Petitioner asserts, moreover, that had he used his sixth peremptory challenge differently, the prosecution may have exercised its remaining peremptory challenges differently in response, and consequently, the composition of the jury panel might have changed significantly.

Although we agree that the failure to remove Huling may have resulted in a jury panel different from that which would otherwise have decided the case, we do not accept the argument that this possibility mandates reversal. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved. One of the principal concerns animating the decision in Gray was the inability to know to a certainty whether the prosecution could and would have used a peremptory challenge to remove the erroneously excused juror. In the instant case, there is no need to speculate whether Huling would have been removed absent the erroneous ruling by the trial court; Huling was in fact removed and did not sit.

Petitioner was undoubtedly required to exercise a peremptory challenge to cure the trial court's error. But we reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. We conclude that no violation of petitioner's right to an impartial jury occurred.

Petitioner also argues that the trial court's failure to remove Huling for cause violated his Fourteenth Amendment right to due process by arbitrarily depriving him of the full complement of nine peremptory challenges allowed under Oklahoma law. We disagree. It is true that we have previously stated that the right to exercise peremptory challenges is "`one of the most important of the rights secured to the accused.'"  But...because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the "right" to peremptory challenges is "denied or impaired" only if the defendant does not receive that which state law provides....


A man's life is at stake. We should not be playing games. In this case, everyone concedes that the trial judge could not arbitrarily take away one of the defendant's peremptory challenges. Yet, that is in effect exactly what happened here. I respectfully dissent.

Neither the State nor this Court disputes that the trial court "erred" when it refused to strike juror Huling for cause from the jury that sentenced petitioner Bobby Lynn Ross to death. Huling twice stated during voir dire that if he were to find Ross guilty of murder, he would automatically vote to impose the death penalty; there is no question that Huling was not the fair and impartial juror guaranteed to petitioner by the Sixth Amendment. The Court concludes, however, that the trial court's error does not require resentencing because it was "cure[d]" by the defense's use of one of a limited number of peremptory challenges to remove the biased juror. I believe that this conclusion is irreconcilable with this Court's holding just last Term that a similar Sixth Amendment error in capital jury selection requires resentencing if "`the composition of the jury panel as a whole could possibly have been affected by the trial court's error....'"

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