Anderson v. State, 2--875A202

Citation359 N.E.2d 594,172 Ind.App. 131
Decision Date10 February 1977
Docket NumberNo. 2--875A202,2--875A202
PartiesJames ANDERSON, Appellant, v. STATE of Indiana, Appellee.
CourtCourt of Appeals of Indiana

David W. Foley, Mullin, Foley & Gilroy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

James Anderson was convicted by jury of first degree burglary and sentenced to an indeterminate term of ten to twenty years. He contends (1) the trial court erred in imposing a twenty minute time limit on his voir dire examination of prospective jurors and (2) the evidence is insufficient to convict.

On the first contention, we reverse.

The examination of prospective jurors on their voir dire was conducted in conformity with a purported 1 rule of Division III of the Criminal Court of Marion County, which apparently read as follows: 2

'RULE 13. VOIR DIRE RULES

'13(a) A large regular panel of jurors shall be maintained and neither special venires or talesmen will be used, except in emergencies.

'13(b) Questionnaires will be mailed to veniremen with their summons, and return, with full answers thereto, will be deemed compliance with the summons, subject to call.

'13(c) The returned questionnaires shall be reproduced in quadruple, fully alphabetized and placed in ring binders. One shall always lay upon the clerk's table, available to counsel during all office hours, except when in use by a Special Judge. One shall lay upon each counsel table during voir dire. Those panelists called shall be first sworn to the truthfulness of their answers to their questionnaires and then, upon any further examination as the Court deems necessary, they shall be excused or incorporated into the regular panel, which shall be done by order book entry.

'The entire panel shall be divided into sections of approximately 30 each or such additional numbers as is deemed necessary to empanel a trial jury in any given case. The sections will be formed as the panelists were drawn and the sections shall be called in rotation, for each successive trial, as they were drawn.

'13(d) Regular panel members will be again sworn, in each case to be tried, to their answers to their questionnaires and to truthfully answer further questions concerning their qualifications as jurors in the cause. If during the voir dire a panelist states an incorrect answer was inadvertently given, the panelist may correct said answer in his or her own hand and be re-sworn. Any or all pertinent questionnaires will be received in evidence upon the trial of any challenge to an individual or to the array, as the case may be.

'The court will first interrogate the panelists especially regarding:

(1) Kinship or acquaintance with any of the parties, attorneys or known witnesses;

(2) Victimization of self or family by the type of crime charged;

(3) A statement of the rights of the accused will be made and an inquiry made as to any opinions which would inhibit them from honoring and being governed thereby.

'13(e) The parties will then have 20 minutes each to interrogate prospective jurors, reserving such time as he elects for second or subsequent rounds. The State goes first.

'13(f) Challenges must be exercised at the close of the first round as to those seated in the jury box.

'13(g) At the close of each succeeding round challenges, if any, may be exercised only as to those occupying seats vacated at the end of the previous round.

'A 'round' may be at the end of a period of interrogation by only one party where the other party has exhausted his time or passed. But such party's right of challenge, under the above rules, remains, as prescribed above.

'13(h) Counsel may interrogate those passed in previous rounds and if cause, not previously touched upon, is developed, in any agree, he may challenge for cause. If the disclosure relates to cause, but the Court finds it inadequate, the Court will permit use of a peremptory challenge if the party has one left from his statutory quota.'

When the jury selection process began for Anderson's trial there were twelve veniremen in the jury box and an undisclosed number of others elsewhere in the courtroom. All were sworn by the court (presumably to truthfully answer concerning their qualifications to sit as jurors as provided in the quoted rule). The court then asked a few general questions but the transcript does not reveal whether his questions were directed to all prospective jurors in the courtroom or only to those already in the jury box. The questions were so worded as to require a response only from an unspecified 'any of you' who, for instance, 'know or are related to any of the parties I have just mentioned'. The record does disclose that the only persons who responded were among the first twelve in the box.

The court's questions, briefly explored: (1) whether any veniremen were acquainted with or related to parties, attorneys or witnesses, or had knowledge of the case; (2) whether any had been burglary victims; (3) whether each could honor defendant's rights, e.g., to remain silent, etc.; and (4) whether the length of the sentence mandated for first degree burglary would deter conviction. The prosecutor then asked questions of each of the twelve until informed by the court that '(y)our time has expired and the jury is now with the Defendant for twenty minutes.' Defendant's attorney then spent twenty minutes questioning the twelve in the box. At that time the court requested counsel to pass up to him (pursuant to his Rule 13(f) and (i)) their written challenges. Four of those in the box were challenged peremptorily, but because the written challenges were not made a part of the record it does not disclose who challenged whom. When the four who had been challenged were excused and their replacements had been called to the box, the court immediately asked for further challenges from the State and the defendant, at which time this colloquy ensued:

(Defense attorney): 'Judge, is there any voir dire? I can't properly balance . . ..

'Court: Well, you have exhausted your time, Mr. Foley. I said when I announced the time that you could use and reserve as you saw fit.

'Mr. Foley: Then I would have to object to exercising any challenges or go any further without some kind of voir dire on these four jurors.

'The Court: The - - - well, what you are objecting to is the rule. I am simply applying the rule.

'Mr. Foley: Yes. I would ask for a relaxation, say, of five minutes or some part of it, Judge.

'Court: Overruled. Mr. Inks and Mr. Lea are excused.'

Those two excused by the court were among the four who had just been called. They also appear to have been challenged peremptorily but, again, the record is silent as to the challenger. Their replacements were also excused and replaced. There were no more challenges. The jury was then accepted by the State and by the defendant subject to his prior objection. Thus the trial was before twelve jurors, one-third of whom had never been questioned on voir dire, directly or indirectly, by the State or the defendant despite the latter's request for time to do so.

While it is quite reasonable to assume that the questionnaires filled out by the veniremen pursuant to the trial court's quoted rule, paragraph (b) and (c) (but never made a part of the record of this case) and their silent answers to the judge's incourt questions were sufficient to negate all grounds for challenge for cause, there is no reason to believe that the questionnaires provided sufficient information to enable either party to exercise intelligently its right to ten peremptory challenges.

Although some states (e.g., California) do not permit voir dire examination for the purpose of determining the advisability of peremptory challenges, 3 Indiana has long followed the rule that 'examination of jurors on their voir dire is not only for the purpose of exposing grounds of challenge for cause, if any exist, but also to elicit such facts as will enable counsel to exercise their right of peremptory challenge intelligently.' M. O'Connor & Co. v. Gillaspy (1908), 170 Ind. 428, 431, 83 N.E. 738, 739--740. More recently the Indiana Supreme Court has said that the right of peremptory challenge 'can avail (an accused person) nothing unless her counsel is permitted to make an intelligent exercise of the right.' Wasy v. State (1955), 234 Ind. 52, 56, 123 N.E.2d 462, 464, 46 A.L.R.2d 1389. That was a case in which an abortion conviction was reversed because the trial court refused to permit defendant's counsel to examine a prospective juror as to her religious faith, if any. The clear implication of those holdings is that parties or their counsel have the right, on voir dire examination of prospective jurors, to inquire into any subject reasonably related to an intelligent exercise of the right of peremptory challenge. However, since the adoption of Trial Rule 47(A), Indiana Rules of Procedure (applicable to criminal cases by virtue of Criminal Rule 21), they no longer have the right to put their questions directly to the prospective jurors if the court chooses to conduct the examination himself. White v. State (1975), Ind., 330 N.E.2d 84, 86, 47 Ind.Dec. 490. But no rule or decision of our Supreme Court has yet abolished the right of parties or their attorneys to ask questions indirectly on jury voir dire. This is so notwithstanding the emphasis recent decisions have placed on the right and duty of trial judges 'to restrict interrogation to that which is pertinent and proper for testing the capacity and competence of the jurors.' Robinson v. State (1973), 260 Ind. 517, 521, 297 N.E.2d 409, 412. On the contrary, Hart v. State (1976), Ind., 352 N.E.2d 712, 717, 54 Ind.Dec. 85, impliedly iterates the right of the parties to participate in the voir dire examination and to ask, directly or indirectly, any non-repetitious question pertinent to the exercise of their right to challenge...

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