Henderson v. State

Citation306 S.E.2d 645,251 Ga. 398
Decision Date08 September 1983
Docket NumberNo. 39782,39782
PartiesWalter Lee HENDERSON v. STATE.
CourtSupreme Court of Georgia

K.B. Hodges, Jr., Hodges & Erwin, Albany, for Walter Lee henderson.

J. Brown Moseley, Dist. Atty., Bainbridge, W. Paul Fryer, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, Susan V. Boleyn, Asst. Atty. Gen., for the State.

HILL, Chief Justice.

Walter Lee Henderson was indicted, tried and convicted for murder and carrying a pistol without a license. He received a life sentence, with 12 months probation on the pistol charge.

Evidence presented at the trial showed that the defendant shot the victim, Curtis Lee, two times early in the morning of August 14, 1982, outside Jones Cafe near Arlington, Georgia. At trial, the defendant claimed he shot the victim in self-defense. On appeal, defendant raises two enumerations of error. Because we reverse, there is no need to set forth the facts at length other than to say that the evidence was sufficient to authorize the jury to find the defendant guilty.

1. In his first enumeration of error, the defendant contends that the trial court erred in limiting voir dire of the jurors by refusing to allow the defendant to ask the panel whether members of the jurors' immediate families had ever worked for law enforcement agencies.

He correctly points out that the right to a jury trial is guaranteed by both our state and federal constitutions. As was said in Bradham v. State, 243 Ga. 638, 639, 256 S.E.2d 331 (1979), quoting Melson v. Dickson, 63 Ga. 682, 686 (1879), "[A]n impartial jury is the cornerstone of the fairness of trial by jury."

The right in criminal cases to examine each prospective juror in order to secure an impartial jury is set out in the Code at OCGA § 15-12-133 (Code Ann. § 59-705) which provides in part: "In the examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror." (Emphasis supplied.)

This Code section is a source of concern to our trial judges, both because of the method of examining prospective jurors it authorizes and because of the scope of such examination. We deal here with the latter aspect. One difficulty as to the scope of examination is that the Code section is written in general terms.

Illustrative of such generality and the problems it causes, it was held in Frazier v. State, 138 Ga.App. 640, 643, 227 S.E.2d 284 (1976), that the phrase "respecting the subject matter of the suit [action]" in OCGA § 15-12-133 (Code Ann. § 59-705), supra, limited voir dire examination to the "particular suit" being tried. Accord, Hill v. State, 221 Ga. 65, 69, 142 S.E.2d 909 (1965); Curtis v. State, 224 Ga. 870, 871, 165 S.E.2d 150 (1968). On the other hand, it was held in Craig v. State, 165 Ga.App. 156, 157, 299 S.E.2d 745 (1983), that it is the type of suit (a drug case), not the particular suit, which controls the scope of voir dire.

It should be kept in mind that the larger purpose of the Code section is to enable counsel to identify those prospective jurors counsel desires to remove from the panel by use of peremptory strikes as opposed to challenges for cause.

Referring to this Code section in Bethay v. State, 235 Ga. 371, 377, 219 S.E.2d 743 (1975), we said that it "... is generally considered as permitting a broad range of questions in examination of prospective jurors. We should keep the Code section in mind however, as opposed to the generalization. For example, that section permits inquiry not as to every matter and every thing, but as to 'any matter or thing which would illustrate any interest of the juror in the cause ...' (Emphasis supplied.)" Not every matter and every thing is the subject of permissible inquiry under the Code section.

Accordingly, it has been held not to be error for the court to refuse to allow defense counsel in criminal cases to ask questions concerning the law and its application to the case on trial, specifically the presumption of innocence, Pinion v. State, 225 Ga. 36(4), 165 S.E.2d 708 (1969). ("Do you, at the moment believe the defendant innocent?"); McNeal v. State, 228 Ga. 633(3), 187 S.E.2d 271 (1972) ("If you were asked right now to return a verdict without hearing any evidence from either side, what would your verdict be?"); Mills v. State, 137 Ga.App. 305(2), 223 S.E.2d 498 (1976); Montgomery v. State, 128 Ga.App. 116(1), 195 S.E.2d 784 (1973); the weight to be given the fact that the defendant has been charged or indicted, Todd v. State, 243 Ga. 539(7), 255 S.E.2d 5 (1979); Freeman v. State, 132 Ga.App. 615, 208 S.E.2d 625 (1974); the state's burden of proof beyond a reasonable doubt, Stack v. State, 234 Ga. 19(2), 214 S.E.2d 514 (1975); Mills v. State, supra; the jury's duty to acquit if the state fails to prove its case beyond a reasonable doubt, Bethay v. State, 235 Ga. 371(4), 219 S.E.2d 743 (1975); Hall v. State, 135 Ga.App. 690(4), 218 S.E.2d 687 (1975); Stack v. State, supra; the defendant's right not to testify, Anderson v. State, 161 Ga.App. 816, 289 S.E.2d 22 (1982); Freeman v. State, supra, 132 Ga.App. 615, 208 S.E.2d 625, and the credibility of law enforcement officers over ordinary citizens, Bennett v. State, 153 Ga.App. 21, 25-26, 264 S.E.2d 516 (1980); Smith v. State, 148 Ga.App. 1, 251 S.E.2d 13 (1978); Cox v. State, 248 Ga. 713(3), 285 S.E.2d 687 (1982). 1

Questions seeking to test the prospective jurors' willingness to accept defenses have been disallowed and upheld on appeal, Holloway v. State, 137 Ga.App. 124(3), 222 S.E.2d 898 (1975) (use of a gun in self-defense); Hart v. State, 137 Ga.App. 644(1), 224 S.E.2d 755 (1976) (defense of family member); Freeman v. State, supra, 132 Ga.App. at 616, 208 S.E.2d 625 (accidental discharge of a weapon); Waters v. State, 248 Ga. 355(3), 283 S.E.2d 238 (1981) (insanity); Jenkins v. State, 157 Ga.App. 310(3), 277 S.E.2d 304 (1981) (reliability of eye witness identification).

Similarly, it has been held not to be error for the court to refuse to allow defense counsel to ask irrelevant questions, Curtis v. State, 224 Ga. 870(2), 165 S.E.2d 150 (1968) (whether the juror would favor legalized gambling, paramutual betting and sale of whiskey); Frazier v. State, 138 Ga.App. 640, 643, 227 S.E.2d 284 (1976) (the employment of the jurors' children, whether or not the jurors smoked or drank alcohol, and what newspapers and magazines they regularly read); White v. State, 230 Ga. 327, 336-337, 196 S.E.2d 849 (1973) (the jurors' ages); Patrick v. State, 245 Ga. 417(3), 265 S.E.2d 553 (1980) (the thinking of other people as to the defendant's guilt).

By the same token, it has been held not to be error for the court to refuse to allow defense counsel to ask prospective jurors concerning their service as jurors in other cases, McGinnis v. State, 135 Ga.App. 843(2), 219 S.E.2d 485 (1975); Frazier v. State, supra, 138 Ga.App. at (2), 227 S.E.2d 284.

On the other hand, it has been held to be error in a drug case to refuse to allow defense counsel to ask: "Have you or any member of your family ever been a victim of a drug transaction?" and "Has any member of your family ever had any problems with drugs?" Craig v. State, supra, 165 Ga.App. at (1), 299 S.E.2d 745. 2

In Falsetta v. State, 158 Ga.App. 392(1), 280 S.E.2d 411 (1981), the prospective jurors were asked whether they were or had ever been employed by any law enforcement agency and whether they had any close family members affiliated now or in the past with any law enforcement agency. The conviction was reversed when it was learned after trial that a former policeman, without responding to the first question asked, had served on the jury. In reversing, the court noted that the defendant was entitled to the information sought by the question. Although the issue in Falsetta involved the juror's employment by a law enforcement agency, as opposed to the juror's family, we find both questions to be proper to "illustrate any interest of the juror in the case, including ... any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the action...." OCGA § 15-12-133 (Code Ann. § 59-705). Certainly, if a juror's religious, social and fraternal connections are relevant and permissible areas of inquiry, then the juror's relationship to employees engaged in law enforcement are also permissible.

Therefore, in the case before us it was error not to allow the defendant to pose this question to the jurors. We reach this conclusion in part because of the limitations, discussed above, upon asking questions concerning the law and its application to the case on trial.

We acknowledge that the question whether members of the jurors' immediate families had ever worked for law enforcement agencies is not related to the "specific" or "particular" suit being tried. Rather, it relates to the type or nature of the suit being tried, to wit: a criminal case. We find that Hill v. State, supra, 221 Ga. 65, 142 S.E.2d 909; Curtis v. State, supra, 224 Ga. 870, 165 S.E.2d 150; and Frazier v. State, supra, 138 Ga.App. 640, 227 S.E.2d 284, were correctly decided but that the phrases used in these decisions, "specific case" and "particular suit", impose an erroneous limitation on OCGA § 15-12-133 (Code Ann. § 59-705), supra.

2. The state contends, alternatively, that the defendant has failed to show that any jury members who decided the case had any relatives who were or had been law enforcement officers, and...

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