No.
90-5193
DAWUD MAJID MU'MIN,
PETITIONER v. VIRGINIA
[May
30, 1991]
Chief Justice
Rehnquist delivered the opinion of the Court.
Petitioner Dawud
Majid Mu'Min was convicted of murdering a woman in
Prince William County, Virginia, while out of prison
on work detail, and was sentenced to death. The case
engendered substantial publicity, and 8 of the 12
venireper sons eventually sworn as jurors answered
on voir dire that they had read or
heard something about the case. None of those who
had read or heard something indicated that they had
formed an opinion based on the outside information,
or that it would affect their ability to determine
petitioner's guilt or innocence based solely on the
evidence presented at trial. Petitioner contends,
however, that his Sixth Amendment right to an
impartial jury and his right to due process under
the Fourteenth Amendment were violated because the
trial judge refused to question further prospective
jurors about the specific contents of the news
reports to which they had been exposed. We reject
petitioner's submission.
Mu'Min was an
inmate at the Virginia Department of Corrections'
Haymarket Correctional Unit serving a 48-year
sentence for a 1973 first-degree murder conviction.
On September 22, 1988, he was transferred to the
Virginia Department of Transportation (VDOT)
Headquarters in Prince William County and assigned
to a work detail supervised by a VDOT employee.
During his lunch break, he escaped over a perimeter
fence at the VDOT facility and made his way to a
nearby shopping center. Using a sharp instrument
that he had fashioned at the VDOT shop, Mu'Min
murdered and robbed Gladys Nopwasky, the owner of a
retail carpet and flooring store. Mu'Min then
returned to his prison work crew at the VDOT,
discarding his bloodied shirt and the murder weapon
near the highway.
About three
months before trial, petitioner submitted to the
trial court, in support of a motion for a change of
venue, 47 newspaper articles relating to the murder.
[n.1] One or more of
the articles discussed details of the murder and
investigation, and included information about
petitioner's prior criminal record (App. 963-969),
the fact that he had been rejected for parole six
times (id., at 923, 942), accounts of alleged
prison infractions (id., at 921, 931, 942),
details about the prior murder for which Mu'Min was
serving his sentence at the time of this murder (id.,
at 948, 951), a comment that the death penalty
had not been available when Mu'Min was convicted for
this earlier murder (id., at 948), and
indications that Mu'Min had confessed to killing
Gladys Nopwasky (id., at 975). Several
articles focused on the alleged laxity in the
supervision of work gangs (id., at 922-924,
930-931), and argued for reform of the prison work-crew
system (id., at 974). The trial judge
deferred ruling on the venue motion until after
making an attempt to seat a jury (Joint Appendix
8-15 (J. A.)).
Shortly before
the date set for trial, petitioner submitted to the
trial judge 64 proposed voir dire
questions
[n.2] (id.,
at 2-7) and filed a motion for individual voir
dire. The trial court denied the motion for
individual voir dire; it ruled that
voir dire would begin with collective
questioning of the venire, but the venire would be
broken down into panels of four, if necessary, to
deal with issues of publicity (id., at
16-17). The trial court also refused to ask any of
petitioner's proposed questions relating to the
content of news items that potential jurors might
have read or seen.
Twenty-six
prospective jurors were summoned into the courtroom
and questioned as a group (id., at 42-66).
When asked by the judge whether anyone had acquired
any information about the alleged offense or the
accused from the news media or from any other
source, 16 of the potential jurors replied that they
had (id., at 46-47). The prospective jurors
were not asked about the source or content of prior
knowledge, but the court then asked the following
questions:
"Would the
information that you heard, received, or read from
whatever source, would that information affect your
impartiality in this case?
"Is there anyone
that would say what you've read, seen, heard, or
whatever information you may have acquired from
whatever the source would affect your impartiality
so that you could not be impartial?
"Considering
what the ladies and gentlemen who have answered in
the affirmative have heard or read about this case,
do you believe that you can enter the Jury box with
an open mind and wait until the entire case is
presented before reaching a fixed opinion or
conclusion as to the guilt or innocence of the
accused?
". . . In view
of everything that you've seen, heard, or read, or
any information from whatever source that you've
acquired about this case, is there anyone who
believes that you could not become a Juror, enter
the Jury box with an open mind and wait until the
entire case is presented before reaching a fixed
opinion or a conclusion as to the guilt or innocence
of the accused?" (Id., at 47-48.)
One of the 16
panel members who admitted to having prior knowledge
of the case answered in response to these questions
that he could not be impartial, and was dismissed
for cause (id., at 48-49). Petitioner moved
that all potential jurors who indicated that they
had been exposed to pretrial publicity be excused
for cause (id., at 68). This motion was
denied (id., at 69), as was petitioner's
renewed motion for a change of venue based on the
pretrial publicity (id., at 71).
The trial court
then conducted further voir dire of
the prospective jurors in panels of four (id.,
at 72-94). Whenever a potential juror indicated
that he had read or heard something about the case,
the juror was then asked whether he had formed an
opinion, and whether he could nonetheless be
impartial. None of those eventually seated stated
that he had formed an opinion, or gave any
indication that he was biased or prejudiced against
the defendant. All swore that they could enter the
jury box with an open mind and wait until the entire
case was presented before reaching a conclusion as
to guilt or innocence.
If any juror
indicated that he had discussed the case with anyone,
the court asked follow-up questions to determine
with whom the discussion took place, and whether the
juror could have an open mind despite the discussion.
One juror who equivocated as to whether she could
enter the jury box with an open mind was removed
sua sponte by the trial judge (id.,
at 90). One juror was dismissed for cause
because she was not "as frank as she could [be]"
concerning the effect of her feelings toward members
of the Islamic Faith and toward defense counsel (id.,
at 81). One juror was dismissed because of her
inability to impose the death penalty (id.,
at 86-87), while another was removed based upon his
statement that upon a finding of first-degree murder,
he could not consider a penalty less than death (App.
339-341). The prosecution and the defense each
peremptorily challenged 6 potential jurors, and the
remaining 14 were seated and sworn as jurors (two as
alternates). Petitioner did not renew his motion for
change of venue or make any other objection to the
composition of the jury. Of the 12 jurors who
decided petitioner's case, 8 had at one time or
another read or heard something about the case. None
had indicated that he had formed an opinion about
the case or would be biased in any way.
The jury found
petitioner guilty of first-degree murder and
recommended that he be sentenced to death. After
taking the matter under advisement and reviewing a
presentence report, the trial judge accepted the
jury's recommendation and sentenced Mu'Min to death.
Mu'Min appealed, contending that he was entitled to
a new trial as a result of the judge's failure to
permit the proposed voir dire
questions. By a divided vote, the Supreme Court of
Virginia affirmed his conviction and sentence,
finding that, while a criminal defendant may
properly ask on voir dire whether a
juror has previously acquired any information about
the case, the defendant does not have a
constitutional right to explore the content
of the acquired information. Rather, an accused is
only entitled to know whether the juror can remain
impartial in light of the previously obtained
information. 239 Va. 433, 443, 389 S. E. 2d 886, 893
(1990). We granted certiorari, 498 U. S. — (1990),
and now affirm.
Our cases
dealing with the requirements of voir dire
are of two kinds: those that were tried in federal
courts, and are therefore subject to this Court's
supervisory power, see Rosales-Lopez v.
United States, 451 U.S. 182 (1981); Aldridge
v. United States, 283 U.S. 308 (1931); and
Connors v. United States, 158 U.S. 408
(1895); and those that were tried in state courts,
with respect to which our authority is limited to
enforcing the commands of the United States
Constitution. See Turner v. Murray,
476 U.S. 28 (1986); Ristaino v. Ross,
424 U.S. 589 (1976); and Ham v. South
Carolina, 409 U.S. 524 (1973).
A brief review
of these cases is instructive. In Connors, we
said:
"[A] suitable
inquiry is permissible in order to ascertain whether
the juror has any bias, opinion, or prejudice that
would affect or control the fair determination by
him of the issues to be tried. That inquiry is
conducted under the supervision of the court, and a
great deal must, of necessity, be left to its sound
discretion. This is the rule in civil cases, and the
same rule must be applied in criminal cases." 158 U.
S., at 413.
In Aldridge
v. United States, 283 U.S. 308 (1931),
counsel for a black defendant sought to have the
Court put a question to the jury as to whether any
of them might be prejudiced against the defendant
because of his race. We held that it was reversible
error for the Court not to have put such a question,
saying "[t]he Court failed to ask any question which
could be deemed to cover the subject." Id.,
at 311. More recently, in Rosales-Lopez v.
United States, supra, we held that such
an inquiry as to racial or ethnic prejudice need not
be made in every case, but only where the defendant
was accused of a violent crime and the defendant and
the victim were members of different racial or
ethnic groups. We said:
"Because the
obligation to empanel an impartial jury lies in the
first instance with the trial judge, and because he
must rely largely on his immediate perceptions,
federal judges have been accorded ample discretion
in determining how best to conduct the voir
dire." Id., at 189.
Three of our
cases dealing with the extent of voir dire
examination have dealt with trials in state courts.
The first of these was Ham v. South
Carolina, supra. In that case, the
defendant was black and had been active in the civil
rights movement in South Carolina; his defense at
trial was that enforcement officers were "out to get
him" because of his civil rights activities, and
that he had been framed on the charge of marijuana
possession of which he was accused. He requested
that two questions be asked regarding racial
prejudice and one question be asked regarding
prejudice against persons, such as himself, who wore
beards. We held that the Due Process Clause of the
Fourteenth Amendment required the court to ask "either
of the brief, general questions urged by the
petitioner" with respect to race, id., at
527, but rejected his claim that an inquiry as to
prejudice against persons with beards be made, "[g]iven
the traditionally broad discretion accorded to the
trial judge in conducting voir dire .
. . ." Id., at 528.
In Ristaino
v. Ross, supra, we held that the
Constitution does not require a state court trial
judge to question prospective jurors as to racial
prejudice in every case where the races of the
defendant and the victim differ, but in Turner
v. Murray, supra, we held that in a
capital case involving a charge of murder of a white
person by a black defendant such questions must be
asked.
We enjoy more
latitude in setting standards for voir
dire in federal courts under our supervisory
power than we have in interpreting the provisions of
the Fourteenth Amendment with respect to voir
dire in state courts. But, two parallel
themes emerge from both sets of cases: first, the
possibility of racial prejudice against a black
defendant charged with a violent crime against a
white person is sufficiently real that the
Fourteenth Amendment requires that inquiry be made
into racial prejudice; second, the trial court
retains great latitude in deciding what questions
should be asked on voir dire. As we
said in Rosales-Lopez, supra:
"Despite its
importance, the adequacy of voir dire
is not easily subject to appellate review. The trial
judge's function at this point in the trial is not
unlike that of the jurors later on in the trial.
Both must reach conclusions as to impartiality and
credibility by relying on their own evaluations of
demeanor evidence and of responses to questions."
Id., at 188.
Petitioner
asserts that the Fourteenth Amendment requires more
in the way of voir dire with respect
to pretrial publicity than our cases have held that
it does with respect to racial or ethnic prejudice.
Not only must the Court "cover the subject,"
Aldridge, supra, at 311, but it must make
precise inquiries about the contents of any news
reports that potential jurors have read. Petitioner
argues that these "content" questions would
materially assist in obtaining a jury less likely to
be tainted by pretrial publicity than one selected
without such questions. There is a certain common
sense appeal to this argument.
Undoubtedly, if
counsel were allowed to see individual jurors answer
questions about exactly what they had read, a better
sense of the juror's general outlook on life might
be revealed, and such a revelation would be of some
use in exercising peremptory challenges. But, since
peremptory challenges are not required by the
Constitution, Ross v. Oklahoma, 487
U.S. 81, 88 (1988), this benefit cannot be a basis
for making "content" questions about pretrial
publicity a constitutional requirement. Such
questions might also have some effect in causing
jurors to re-evaluate their own answers as to
whether they had formed any opinion about the case,
but this is necessarily speculative.
Acceptance of
petitioner's claim would require that each potential
juror be interrogated individually; even were the
interrogation conducted in panels of four jurors, as
the trial court did here, descriptions of one juror
about pretrial publicity would obviously be
communicated to the three other members of the panel
being interrogated, with the prospect that more harm
than good would be done by the interrogation.
Petitioner says that the questioning can be
accomplished by juror questionnaires submitted in
advance at trial, but such written answers would not
give counsel or the court any exposure to the
demeanor of the juror in the course of answering the
content questions. The trial court in this case
expressed reservations about interrogating jurors
individually because it might make the jurors feel
that they themselves were on trial. While concern
for the feelings and sensibilities of potential
jurors cannot be allowed to defeat inquiry necessary
to protect a constitutional right, we do not believe
that "content" questions are constitutionally
required.
Whether a trial
court decides to put questions about the content of
publicity to a potential juror or not, it must make
the same decision at the end of the questioning: is
this juror to be believed when he says he has not
formed an opinion about the case? Questions about
the content of the publicity to which jurors have
been exposed might be helpful in assessing whether a
juror is impartial. To be constitutionally compelled,
however, it is not enough that such questions might
be helpful. Rather, the trial court's failure to ask
these questions must render the defendant's trial
fundamentally unfair. See Murphy v.
Florida, 421 U.S. 794, 799 (1975).
Aldridge
was this Court's seminal case requiring inquiry as
to racial prejudice, and the opinion makes clear
that in reaching that result we relied heavily on a
unanimous body of state court precedents holding
that such an inquiry should be made. 283 U. S., at
311-313. On the subject of pretrial publicity,
however, there is no similar consensus, or even
weight of authority, favoring petitioner's position.
Among the state court decisions cited to us by the
parties, not only Virginia, but South Carolina,
State v. Lucas, 285 S. C. 37, 39-40, 328
S. E. 2d 63, 64-65, cert. denied, 472 U.S. 1012
(1985), Massachusetts, Commonwealth v.
Burden, 15 Mass. App. 666, 674, 448 N. E. 2d
387, 393 (1983), and Pennsylvania, Commonwealth
v. Dolhancryk, 273 Pa. Super. 217, 222, 417
A. 2d 246, 248 (1979), have refused to adopt such a
rule. The Courts of Appeals for the Fifth Circuit,
United States v. Davis, 583 F. 2d 190,
196 (1978), the Seventh Circuit, United States
v. Dellinger, 472 F. 2d 340, 375-376 (1972),
cert. denied, 410 U.S. 970 (1973), and the Ninth
Circuit, Silverthorn v. United States,
400 F. 2d 627, 639 (1968),
[n.3] have held that
in some circumstances such an inquiry is required.
The Court of Appeals for the Eleventh Circuit has
held that it is not. United States v.
Montgomery, 772 F. 2d 733, 735-736 (1985). The
Courts of Appeals for the Eight and District of
Columbia Circuits appear to take an intermediate
position. United States v. Poludniak,
657 F. 2d 948, 956 (CA8 1981), cert. denied sub
nom. Weigand v. United States, 455 U.S.
940 (1982); United States v. Haldeman,
181 U. S. App. D. C. 254, 288-289, 559 F. 2d 31,
65-66 (1976), cert. denied sub nom. Ehrlichman
v. United States, 431 U.S. 933 (1977). Even
those Federal Courts of Appeals that have required
such an inquiry to be made have not expressly placed
their decision on constitutional grounds.
As noted above,
our own cases have stressed the wide discretion
granted to the trial court in conducting voir
dire in the area of pretrial publicity and in
other areas of inquiry that might tend to show juror
bias. Particularly with respect to pretrial
publicity, we think this primary reliance on the
judgment of the trial court makes good sense. The
judge of that court sits in the locale where the
publicity is said to have had its effect, and brings
to his evaluation of any such claim his own
perception of the depth and extent of news stories
that might influence a juror. The trial court, of
course, does not impute his own perceptions to the
jurors who are being examined, but these perceptions
should be of assistance to it in deciding how
detailed an inquiry to make of the members of the
jury venire.
Petitioner
relies heavily on our opinion in Irvin v.
Dowd, 366 U.S. 717 (1961), to support his
position. In that case, we held that pretrial
publicity in connection with a capital trial had so
tainted the jury pool in Gibson County, Indiana,
that the defendant was entitled as a matter of
federal constitutional law to a change of venue to
another county. Our opinion in that case details at
great length the extraordinary publicity that
attended the defendant's prosecution and conviction
for murder.
"[A] barrage of
newspaper headlines, articles, cartoons and pictures
was unleashed against [the defendant] during the six
or seven months preceding his trial. . . . [T]he
newspapers in which the stories appeared were
delivered regularly to approximately 95" of the
dwellings in Gibson County and . . . the Evansville
radio and TV stations, which likewise blanketed that
county, also carried extensive newscasts covering
the same incidents." Id., at 725.
Two-thirds of
the jurors actually seated had formed an opinion
that the defendant was guilty, and acknowledged
familiarity with material facts and circumstances of
the case. Id., at 728. Although each of these
jurors said that he could be impartial, we
concluded:
"With his life
at stake, it is not requiring too much that
petitioner be tried in an atmosphere undisturbed by
so huge a wave of public passion and by a jury other
than one in which two-thirds of the members admit,
before hearing any testimony, to possessing a belief
in his guilt." Ibid.
We believe that
this case is instructive, but not in the way
petitioner employs it. It did not deal with any
constitutional requirement of voir dire
inquiry, and it is not clear from our opinion how
extensive an inquiry the trial court made. But the
contrast between that case and the present one is
marked. In Irvin, the trial court excused
over half of a panel of 430 persons because their
opinions of the defendant's guilt were so fixed that
they could not be impartial, and 8 of the 12 jurors
who sat had formed an opinion as to guilt. In the
present case, 8 of the 12 jurors who sat answered
that they had read or heard something about the
case, but none of those 8 indicated that he had
formed an opinion as to guilt, or that the
information would affect his ability to judge
petitioner solely on the basis of the evidence
presented at trial.
A trial court's
findings of juror impartiality may "be overturned
only for `manifest error.' " Patton v.
Yount, 467 U. S. 1025, 1031 (1984) (quoting
Irvin v. Dowd, supra, at 723).
In Patton, we acknowledged that "adverse
pretrial publicity can create such a presumption of
prejudice in a community that the jurors' claims
that they can be impartial should not be believed,"
467 U. S., at 1031, but this is not such a case. Had
the trial court in this case been confronted with
the "wave of public passion" engendered by pretrial
publicity that occurred in connection with Irvin's
trial, the Due Process Clause of the Fourteenth
Amendment might well have required more extensive
examination of potential jurors than it undertook
here. But the showings are not comparable; the cases
differ both in the kind of community in which the
coverage took place and in extent of media coverage.
Unlike the community involved in Irvin, the
county in which petitioner was tried, Prince
William, had a population in 1988 of 182,537, and
this was one of nine murders committed in the county
that year. It is a part of the metropolitan
Washington statistical area, which has a population
of over 3 million, and in which, unfortunately,
hundreds of murders are committed each year. In
Irvin, news accounts included details of the
defendant's confessions to 24 burglaries and six
murders, including the one for which he was tried,
as well as his unaccepted offer to plead guilty in
order to avoid the death sentence. They contained
numerous opinions as to his guilt, as well as
opinions about the appropriate punishment. While
news reports about Mu'Min were not favorable, they
did not contain the same sort of damaging
information. Much of the pretrial publicity was
aimed at the Department of Corrections and the
criminal justice system in general, criticizing the
furlough and work release programs that made this
and other crimes possible. Any killing that
ultimately results in a charge of capital murder
will engender considerable media coverage, and this
one may have engendered more than most because of
its occurrence during the 1988 Presidential campaign,
when a similar crime committed by a Massachusetts
inmate became a subject of national debate. But,
while the pretrial publicity in this case appears to
have been substantial, it was not of the same kind
or extent as that found to exist in Irvin.
Petitioner also
relies on the Standards for Criminal Justice 8-3.5
(2d ed. 1980), promulgated by the American Bar
Association. These standards require interrogation
of each juror individually with respect to "what the
prospective juror has read and heard about the
case," "[i]f there is a substantial possibility that
individual jurors will be ineligible to serve
because of exposure to potentially prejudicial
material." These standards, of course, leave to the
trial court the initial determination of whether
there is such a substantial possibility. But, more
importantly, the standards relating to voir
dire are based on a substantive rule that
renders a potential juror subject to challenge for
cause, without regard to his state of mind, if he
has been exposed to and remembers "highly
significant information" or "other incriminating
matters that may be inadmissible in evidence." That
is a stricter standard of juror eligibility than
that which we have held the Constitution to require.
Under the ABA standard, answers to questions about
content, without more, could disqualify the juror
from sitting. Under the constitutional standard, on
the other hand, "[t]he relevant question is not
whether the community remembered the case, but
whether the jurors . . . had such fixed opinions
that they could not judge impartially the guilt of
the defendant." Patton, supra, at
1035. Under this constitutional standard, answers to
questions about content alone, which reveal that a
juror remembered facts about the case, would not be
sufficient to disqualify a juror. "It is not
required . . . that the jurors be totally ignorant
of the facts and issues involved." Irvin, 366
U. S., at 722.
The ABA
standards as indicated in our previous discussion of
state and federal court decisions, have not
commended themselves to a majority of the courts
that have considered the question. The fact that a
particular rule may be thought to be the "better"
view does not mean that it is incorporated into the
Fourteenth Amendment. Cupp v. Naughten,
414 U.S. 141 (1973).
The voir
dire examination conducted by the trial court
in this case was by no means perfunctory. The court
asked the entire venire of jurors four separate
questions about the effect on them of pretrial
publicity or information about the case obtained by
other means. One juror admitted to having formed a
belief as to petitioner's guilt, and was excused for
cause. The trial court then conducted further
voir dire in panels of four, and each
time an individual juror indicated that he had
acquired knowledge about the case from outside
sources, he was asked whether he had formed an
opinion; none of the jurors seated indicated that he
had formed an opinion. One juror who equivocated as
to her impartiality was excused by the trial court
on its own motion. Several other jurors were excused
for other reasons. It is quite possible that if
voir dire interrogation had revealed one
or more jurors who had formed an opinion about the
case, the trial court might have decided to question
succeeding jurors more extensively.
Voir
dire examination serves the dual purposes of
enabling the court to select an impartial jury and
assisting counsel in exercising peremptory
challenges. In Aldridge and Ham we
held that the subject of possible racial bias must
be "covered" by the questioning of the trial court
in the course of its examination of potential jurors,
but we were careful not to specify the particulars
by which this could be done. We did not, for
instance, require questioning of individual jurors
about facts or experiences that might have led to
racial bias. Petitioner in this case insists, as a
matter of constitutional right, not only that the
subject of possible bias from pretrial publicity be
covered — which it was — but that questions
specifically dealing with the content of what each
juror has read be asked. For the reasons previously
stated, we hold that the Due Process Clause of the
Fourteenth Amendment does not reach this far,and
that the voir dire examination
conducted by the trial court in this case was
consistent with that provision. The judgment of the
Supreme Court of Virginia is accordingly
Affirmed.
*****
Notes
