Opinion
No. KA-2943.
September 9, 1985. Rehearing Denied November 14, 1985.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE MATTHEW S. BRANIFF, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Julia S. Coley, Asst. Dist. Atty., New Orleans, for appellee.
John H. Craft, Craft Doskey, New Orleans, for appellant.
Before BARRY and WARD, JJ., and PRESTON H. HUFFT, J. Pro Tem.
Defendant, Dell Sexton, was charged by Bill of Information with two counts of simple burglary of inhabited dwellings. Following trial, the jury returned a verdict of guilty on both counts. The trial judge sentenced the defendant to serve 12 years in the custody of the Louisiana Department of Corrections on each count, with the sentences to be served consecutively.
Defendant urges two assignments of error concerning the voir dire examination of a prospective juror: 1) the court erred in curtailing the examination, and 2) the court erred in denying a challenge for cause of the same juror. We find merit to defendant's contention that he was denied the right to full voir dire examination and reverse the conviction.
The following is the portion of the transcript which gives rise to defendant's contention of impermissible curtailment of voir dire examination:
BY MR. CRAFT:
Q Ladies and gentlemen, you have heard everything I had to say before?
A (All indicated yes.)
Q Are there any questions or any points that you feel should be brought up now?
A (All indicated no.)
Q Ms. Cazalas, you were primarily a criminal prosecutor for a period of eight years; is that correct?
A I did all the criminal appellate work for the Eastern District of Louisiana.
Q If you were called upon to serve as a juror in this case, would you be able to look at this case as a citizen, only based upon your common sense and your general experience without bringing to bear or exposing to the other jurors called to serve in this case, any of the technicalities of law or anything else that you know about, such as rulings, that would be made by the Court.
A Yes, sir.
Q You would be able to do that?
A Yes.
MR. WILLIAMS:
Your Honor, I'm going to have to object to that. I don't think he can ask for Ms. Cazalas to make that commitment.
THE COURT:
You cannot ask for any prospective juror to commit themselves to a verdict before they heard the evidence. The objection is sustained.
MR. CRAFT:
Your Honor, please note my objection to the Court's ruling. I reserve my question as directed towards whether or not Ms. Cazalas was —
THE COURT:
Just a moment, don't make a speech now; I overruled your objection and you have noted an objection for the record. That's as far as you can go, son. Proceed.
MR. CRAFT:
Because of Ms. Cazalas prior experience, we would move to challenge for cause.
THE COURT:
Denied.
MR. CRAFT:
Note my objection to the Court's ruling.
THE COURT:
Proceed.
* * * * * *
The trial judge either did not hear in its entirety the question propounded to Ms. Cazalas or misunderstood it (which is conceded by the State), but it is clear that he did not fully comprehend the nature and purpose of the question. The State objected on the ground that the defendant was asking Ms. Cazalas to make a commitment, and the trial judge, in sustaining the objection, ruled the defendant could not ask prospective jurors to commit themselves to a verdict before they hear the evidence. Defendant objected to the ruling and attempted to point out to the court the true nature and objective of his line of questioning but the trial judge, in the mistaken belief that the questioning was directed toward the eliciting of a commitment for a verdict before the evidence, emphatically prevented the defendant from proceeding any further or even stating the nature of the objection or the grounds therefor. On the basis of the only two questions permitted to be asked of Ms. Cazalas, defendant moved to challenge her for cause because of her prior experience. The trial judge denied the challenge.
Article 1, § 17 of the La. Const. guarantees that: "[t]he accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." Article 786 of the Code of Criminal Procedure provides:
The court, the state, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court. A prospective juror, before being examined, shall be sworn to answer truthfully questions asked him relative to his qualifications to serve as a juror in the case.
Article 797, Code of Criminal Procedure, provides:
The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.
A good review of the purpose of allowing wide latitude in voir dire examination and of the trial court's discretion is presented in State v. Jackson, 358 So.2d 1263, 1266 (La. 1978):
La. Const. art. 1, § 17 guarantees that "[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." La. Code Crim.P. art. 786 further provides that the court, the state, and the defendant shall have the right to examine prospective jurors and the scope of the examination shall be within the discretion of the court. We have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. State v. Ford, 349 So.2d 300 (La. 1977); State v. Nero, 319 So.2d 303 (La. 1975). It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Ford, supra; State v. Sheppard, 263 La. 379, 268 So.2d 590 (1972). The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Ford, supra; State v. Clark, 325 So.2d 802 (La. 1976). However, although the trial judge is vested with discretion to limit the voir dire examination, he must afford wide latitude to counsel in the conduct of voir dire examination to effectuate the accused's right to full voir dire of prospective jurors embodied in La. Const. art. 1, § 17. State v. Holmes, 347 So.2d 221 (La. 1977); State v. May, 339 So.2d 764 (La. 1976). See State v. Monroe, 329 So.2d 193 (La. 1976); State v. Brumley, 320 So. 3d 129 (La. 1975); State v. Crittle, 263 La. 418, 268 So.2d 604 (1972); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). In order to determine whether a trial judge has in fact afforded a sufficiently wide latitude to the defendant in examining prospective jurors, a review of the trial judge's rulings should be undertaken only on the record of the voir dire examination as a whole. State v. Ford, supra; State v. Roach, 338 So.2d 621 (La. 1976); State v. Monroe, supra.
Two questions were clearly not sufficient to explore the impartiality of a prospective juror such as Ms. Cazalas. She had been an Assistant United States Attorney, and although she answered defendant's question as to her ability to serve as a "citizen" only and not use her prior experience to influence other jurors in the affirmative, the inference of implied bias is so strong under such circumstances that defendant should have been allowed to further explore the possible existence of bias or prejudice.
In light of State v. Monroe, 366 So.2d 1345 (La. 1978), the defendant, if given an opportunity for full voir dire examination, could very well have explored the time frame during which Ms. Cazalas served as an Assistant United States Attorney, the nature of her assignment, the time involved in the handling of habeas corpus litigation arising out of convictions in the Criminal District Court, her association or friendship with members of the District Attorney's staff in the handling of such cases, and numerous other areas which would have a bearing on the existence or non-existence of bias or prejudice. The further examination of Ms. Cazalas would have revealed factual information from which the trial judge in the exercise of his discretion could have made a determination on this issue.
We cannot find fault with the trial court's denial of the challenge for cause on the basis of the record. The trial judge was under no duty to explore the question of the existence of implied bias or prejudice, but he was under a duty to afford the defendant the necessary latitude to explore such a question under the circumstances of the case. We cannot speculate what Ms. Cazalas's testimony would have been under a constitutionally guaranteed right of full voir dire examination, but we do know that the voir dire examination allowed in this case falls far short of the constitutional guarantee. If defense counsel's question had been heard or understood, it is unlikely the trial judge would have prevented the defendant from presenting a full and complete record from which the court would have been able to make a determination of the existence or non-existence of bias or prejudice.
Under State v. Monroe, supra, in order to obtain a reversal of his conviction, the defendant only has to prove that he was denied his constitutional right of full voir dire examination and such denial resulted in an inadequate record for the consideration of his challenge for cause. He does not have to make an additional showing of injury resulting from the court's action.
We hold that the curtailment of full voir dire examination violated the right guaranteed to the defendant under Article 1, § 17 of the La. Const. Since this denial affected substantial rights of the defendant, we must reverse and remand for a new trial in accordance with the law.
REVERSED AND REMANDED.
WARD, J., dissents with reasons.
I respectfully dissent based on the overwhelming evidence of Sexton's guilt, the absence of a record of the entire voir dire, and the harmless error of the Trial Judge in denying the challenge for cause.
The bill of information charging Dell Sexton alleged that the first burglary occurred at 1107 Dante Street on August 26, 1983, and the second at 1535 Dublin Street on September 13, 1983. Following trial, the jury returned an eleven-to-one verdict of guilty on the Dante Street burglary and a unanimous verdict of guilty on the Dublin Street burglary.
The following facts convince me of the correctness of the jury's verdicts. On August 26, 1983, Laura Weber returned to her home on Dante Street to discover that someone had broken into her apartment through the back door. The entire apartment had been ransacked. She notified the New Orleans Police Department which dispatched two officers to investigate. They successfully lifted fingerprints from the rear door of Ms. Weber's apartment and took photographs of the scene showing that the point of entry was the rear door. Weber reported that her apartment was secure when she left and that she had not given anyone, including Sexton whom she has never met, authority to enter her apartment.
Similarly, Ann Groves returned from work on September 13, 1983, to find that someone had broken into her home on Dublin Street, which is located some five or six blocks from Ms. Weber's apartment. The rear guest bedroom had been completely ransacked, and someone had rifled through the rest of the home. A television, two furs, and miscellaneous household items were missing. Whoever entered had removed the burglar bars and broken one window pane from a side window. Two panes from the same window had also been removed and placed by the side of the house in an alley. Officer Wilson of the New Orleans Police Department lifted fingerprints from the broken glass and the window panes. Ms. Groves testified at trial that she did not give anyone authority to enter her home, and she identified property seized by the police as the property stolen from her home during the burglary.
Detective Solis, a fingerprint expert in the New Orleans Police Department, matched the fingerprints taken from both burglary scenes to those of Dell Sexton. Using this evidence, Officers Heffernan and Nides obtained an arrest warrant for Sexton. As they were arresting Sexton at his sister's home, the officers noticed several of the articles described in the police report as stolen from Ms. Groves' home. This property was seized and brought with Sexton to the police station.
At the police station, Officer Heffernan first verbally advised Sexton of his constitutional rights and then asked Sexton if he had anything to say. Sexton responded with the words: "O.K. you got me," and stated that he had sold some of the stolen property taken from the houses.
Unquestionably, the State presented overwhelming evidence to support the jury verdicts of Sexton's guilt.
As for Sexton's two interrelated assignments of error, his argument is that the denial by the Trial Court of a full voir dire examination of a prospective juror precluded a complete evaluation of defense counsel's challenge for cause based on his belief that the juror was biased because of her past employment.
Constitutional error in a criminal trial is not reversible error if there is little likelihood that the error would have changed the result — if it is clear beyond a reasonable doubt that the constitutional error did not contribute to the conviction. State v. Frisco, 411 So.2d 37 (La. 1982); State v. Silbey, 450 So.2d 710 (La.App. 4th Cir. 1984). Furthermore, the Trial Court's rulings on the scope of voir dire will not be disturbed on appeal absent a showing of clear abuse of discretion under the prevailing facts and circumstances. La.C.Cr.P. art. 786; State v. Jackson, 358 So.2d 1263 (La. 1978). The denial of a proper question by a Trial Judge during voir dire, although error, is not automatically an abuse of discretion. To determine whether a restriction of voir dire is an error which requires reversal, the reviewing court must consider the entire voir dire examination. State v. Nicholas, 397 So.2d 1308 (La. 1981).
The instant record does not provide the entire voir dire examination. We are not informed whether the Trial Judge conducted a voir dire examination or whether the State or counsel for Sexton had previously asked other questions to the prospective jurors as a group or to Ms. Cazalas individually. Because Sexton's counsel provided only the questioning that was subject to Sexton's objection, it is impossible to determine whether the Trial Judge's error in restricting the examination of a prospective juror unfairly prejudiced Sexton. Furthermore, the defense made no allegation that the Trial Judge otherwise restricted voir dire. The record in this appeal simply will not support the argument that the Trial Judge's ruling deprived Sexton of his constitutional right to voir dire. State v. Nichols, supra.
Nor does the record prove denial of the challenge for cause was reversible error. An erroneous ruling on a challenge for cause which compels a defendant to exercise one of his peremptory challenges constitutes violation of his constitutional or statutory rights. La. Const. art. 1 Sec. 17; La.C.Cr.P. arts. 797, 799 and 921; State v. Monroe, 366 So.2d at 1347. A Trial Judge is vested with broad discretion in ruling on a challenge for cause which will not be disturbed on appeal absent an arbitrary or unreasonable prejudice to the defendant in obtaining a fair and impartial trial. State v. Sylvester, 400 So.2d 640 (La. 1981); State v. Johnson, 324 So.2d 349 (La. 1975). Neither former nor current employment with a prosecutor's office constitutes cause that will automatically preclude an individual from being a fair and impartial juror. State v. Edwards, 412 So.2d 1029 (La. 1982). Diligent prosecutors often become enthusiastic defense attorneys. Nonetheless, the question of whether one formerly or currently associated with law enforcement may serve on a criminal jury must be closely scrutinized by a Trial Judge and may justify a challenge for cause. State v. Sylvester, 400 So.2d at 643; State v. Simmons, 390 So.2d 1317 (La. 1980).
Assuming that the Trial Judge erred in preventing Sexton's counsel from uncovering bias based on the prospective juror's past employment, the record again does not show reversible error. The defendant, as the appellant, has the responsibility to ensure the inclusion in the record of all matters he intends to rely upon on appeal. Uniform Rules, Courts of Appeal, Rule 1-3.
Although an examination of the minutes in the record reveals that the potential juror in question, Mary Cazalas, was not one of the jurors ultimately selected, the record does not disclose how or by whom she was excused. Nor has counsel for Sexton argued in his brief that the ruling of the Trial Judge on the challenge for cause deprived Sexton of one of his peremptory challenges.
The rule set forth in Monroe, supra, remains: the defendant must still present the court of appeal with a record which demonstrates reversible error of the Trial Judge in denying the challenge for cause. Because the record reveals that Cazalas was not one of the jurors ultimately selected, Sexton has made absolutely no showing of prejudice in obtaining a fair and impartial trial. See, State v. Tauzier, 397 So.2d 494 (La. 1981), in which defendants were not entitled to relief on appeal based on the theory that a member of the district attorney's secretarial staff served improperly as a member of the jury, since the defendants failed to demonstrate that the secretary actually served as a juror.
I neither approve of the Trial Judge curtailing voir dire nor agree with his denying the challenge for cause. Nevertheless, the overwhelming evidence of guilt and the absence of a record of the entire voir dire lead me to conclude that Dell Sexton has not shown reversible error. It is clear beyond a reasonable doubt that the Trial Judge's denial of a proper question during voir dire, which may have precluded a complete evaluation of a challenge for cause of a prospective juror who was not selected to serve on the jury panel, did not contribute to Sexton's conviction. The evidence, when so overwhelming, should not be ignored but rather should be weighed with care before a conviction is reversed for reasons unsupported by the record. Therefore, I would affirm.