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

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U.S. Supreme Court

Ross v. Oklahoma, 487 U.S. 81 (1988)

Ross v. Oklahoma

No. 86-5309

Argued January 19, 1988

Reargued April 18, 1988

Decided June 22, 1988

487 U.S. 81


Petitioner was charged with the capital offense of first-degree murder. An Oklahoma statute provides both parties in capital trials with nine peremptory challenges to prospective jurors. After the trial court denied petitioner's motion to remove for cause prospective juror Huling, who had declared that he would vote to impose death automatically if the jury found petitioner guilty, the defense exercised one of its peremptory challenges to remove him. Although the defense used all nine of its challenges, it did not challenge for cause any of the 12 jurors who actually heard the case. At the close of jury selection, the trial court overruled the objection of petitioner, who is black, that the composition of the all-white jury denied him a fair and impartial trial by his peers. The jury found petitioner guilty and sentenced him to death, and the Oklahoma Court of Criminal Appeals affirmed.


1. Although the trial court erred in failing to remove Huling for cause under Witherspoon v. Illinois, 391 U. S. 510, and Wainwright v. Witt, 469 U. S. 412, such failure did not abridge petitioner's Sixth and Fourteenth Amendment right to an impartial jury, since Huling did not sit on the jury that sentenced petitioner to death, petitioner's peremptory challenge having removed him as effectively as if the trial court had done so. The broad language in Gray v. Mississippi, 481 U. S. 648, 481 U. S. 665, 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"

(internal quotations omitted; emphasis in original), is too sweeping to be applied literally, and should not be extended beyond its context: the erroneous "Witherspoon exclusion" of a qualified juror in a capital case. Although the failure to remove Huling may have resulted in a jury panel different from that which would otherwise have decided the case, one of the principal concerns animating Gray -- the inability to know whether the prosecution could and would have used a peremptory challenge to remove the erroneous excluded juror -- is absent here, since Huling was in fact removed. The fact that petitioner had to use a peremptory challenge to cure the court's error does not mean that the Sixth Amendment was violated, since peremptory challenges are not of constitutional dimension,

Page 487 U. S. 82

but are merely a means to achieve the end of an impartial jury. Petitioner has failed to establish that the jury that actually sat was not impartial, since he never challenged any of the jurors for cause, nor suggested their partiality, and since, in this Court, he neither pressed the claim that the absence of blacks deprived the jury of partiality nor suggested that such absence was in any way related to the court's failure to remove Huling. Pp. 487 U. S. 85-88.

2. The trial court's failure to remove Huling for cause did not abridge petitioner's Fourteenth Amendment right to due process by arbitrarily depriving him of his full complement of peremptory challenges. Even assuming that the Constitution renders a State's denial or impairment of the right to exercise such challenges reversible error without a showing of prejudice, cf. Swain v. Alabama, 380 U. S. 202, that "right" would be "denied or impaired" only if the defendant did not receive that which state law provides, since peremptory challenges are a creature of statute, and not constitutionally required, and, accordingly, it is for the State to determine their number and to define their purpose and the manner of their exercise. Although Oklahoma provides a capital defendant with nine peremptory challenges, state law has long qualified this grant with the requirement that the defendant must use those challenges to cure erroneous refusals to excuse jurors for cause. There is nothing arbitrary or irrational about such a requirement, since it subordinates the unfettered discretion to use challenges to the goal of empaneling an impartial jury, and since this Court has sanctioned numerous incursions upon the right to challenge peremptorily. Thus, petitioner's due process challenge must fail, since he received all that Oklahoma law allowed him. Logan v. Zimmerman Brush Co., 455 U. S. 422, and Hicks v. Oklahoma, 447 U. S. 343, distinguished. Pp. 487 U. S. 88-91.

717 P.2d 117, affirmed.

REHNQUIST, C.J.,delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 487 U. S. 91.

Page 487 U. S. 83

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