Manuel v. State, F--75--43
| Decision Date | 18 September 1975 |
| Docket Number | F--75--43 |
| Citation | 1975 OK CR 174,541 P.2d 233 |
| Parties | Felton MANUEL, Appellant, v. The STATE of Oklahoma, Appellee. no. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Felton Manuel, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Okmulgee County, Case No. CRF--72--98, for the offense of Murder, in violation of 21 O.S.1971, § 701. His punishment was fixed at Life imprisonment, and from said judgment and sentence his appeal has been presented to this Court.
As this case requires reversal, a complete statement of the facts is unnecessary. The evidence adduced upon trial revealed that one Arlantus Evans died of extensive head injuries inflicted when the defendant struck him with a pool cue at the Sunset Cafe in Okmulgee, Oklahoma. In a tape recorded statement admitted into evidence, defendant contended that he struck the deceased in self-defense when the deceased approached him threatening to shoot him and reaching for where deceased commonly carried a gun. In that statement the defendant also stated that the deceased had previously shot him and had communicated further threats through others to do so again. However, at the time of the fatal and sudden encounter defendant did not actually see the deceased with a gun, and none was found on his body.
In the first of his two assignments of error, defendant contends that he was deprived of the right to trial by an impartial jury under the Sixth Amendment to the United States Constitution and Article II, § 20, of the Oklahoma Constitution. Specifically, the defendant complains that during voir dire examination he was not informed that a venireman and ultimate juror, Mr. Cunningham, was the husband of the District Attorney's local chief secretary. The State responds that defense counsel failed to exercise due diligence in ascertaining whether such a relationship existed, the question propounded to that venireman in this regard was ambiguous, that venireman otherwise indicated he could sit as a fair and impartial juror, the record does not support the allegation that such a relationship existed, the assignment was not properly preserved for review on appeal, and any error was harmless in view of the evidence presented.
Mr. Cunningham was the fourth venireman to be examined by defense counsel, and an understanding and appreciation of this assignment requires that attention be additionally directed to the voir dire of the first three veniremen so examined. The most pertinent portion of the voir dire examination of these four veniremen is reflected in the separate transcript filed with the trial court on October 16, 1972, respectively as follows:
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(Tr. 8)
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(Tr. 15)
Similar questions regarding acquaintanceship with the District Attorney's Office were subsequently propounded to other veniremen (Tr. 20 and 25), whereas a more generalized examination was directed to the remaining veniremen. Defense counsel explains he did not learn that Mr. Cunningham's spouse was an employee of the District Attorney's Office until the second day of trial proceedings while the jury was in deliberation. Upon rendition of the verdict and before the jury was polled, defense counsel in open court asserted that he desired for the record to reflect that Mr. Cunningham was the husband of the chief secretary to the District Attorney, but then accepted the invitation of the trial court to present this matter in his motion for new trial. (Tr. 176)
Especially since life imprisonment was the only sentence assessable upon conviction for the offense charged, we agree the defense counsel should have exercised greater care in his examination of the prospective jurors to discover any potentially prejudicial association with law enforcement agencies. As set forth in Looper v. State, Okl.Cr., 381 P.2d 1018, 1023 (1963), this Court has repeatedly held that:
However, on no less than four occasions during voir dire examination of other veniremen, defense counsel explicitly inquired regarding acquaintanceship with the District Attorney's Office, thereby manifesting his very legitimate interest in discovering and exploring any such association which might prejudice the defendant. The venireman's marriage to an employee of the District Attorney's Office was certainly known to himself, and in all probability known to the prosecutor or his assistant and perhaps the trial court in such a rurally populated area. We are persuaded that had defense counsel's assertion in open court not been true, either Mr. Cunningham or the prosecution would have immediately denied the relationship in the interest of an expedient resolution of the matter. Further, under the circumstances above set forth we find that any error was timely and properly presented in defendant's motion for a new trial.
In Carr v. State, 65 Okl.Cr. 201, 84 P.2d 42, 47 (1938), this Court observed that:
'. . . A waiver involves the idea of assent and assent is primarily an act of the understanding. It presupposes that the person to be affected has knowledge of his rights, but does not wish to enforce them. He cannot properly be said to waive that of which he had no knowledge. It must appear that the defendant had knowledge of the disqualification of a juror before it can be held that he waived the objection.
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'. . . 'The impartiality of the jury goes to the very foundation of the accused's liberty, and where evidence is introduced such as is disclosed by this record of a convincing character to show that there is a strong probability that the accused was not accorded that fair and impartial trial guaranteed to him by the Constitution and laws of this state, and the rebuttal evidence is of a very unsatisfactory character, the verdict should be set aside and a new trial granted. It requires the unanimous consent of the jury to convict, and a fair and impartial jury is not had by 11 impartial men and one man shown to be prejudiced within the definition of actual bias."
In view thereof, we are of the opinion that the nonfeasance of at least the veniremen and most probably the prosecution in failing to inform the defense counsel of the situation was not commensurate with principles of fundamental fairness. We recognize that in other voir dire examination Mr. Cunningham indicated that he was of the opinion that he could sit as a fair and impartial juror, and that the record before us does not establish that he failed to do so. In Thompson v. State, Okl.Cr., 519 P.2d 538, 541 (1974), we stated that:
'. . . (T)his Court has repeatedly held that it is not error alone that reverses judgments of convictions of crime in this State, but error plus injury, and the burden is upon the appellant to establish to the appellate court the fact that he was prejudiced in his substantial rights by the commission of error, . . .'
However, since defense counsel was not informed of the relationship after he had manifested his interest therein by specific interrogatories incorporated into a more general examination at a time when the veniremen and most probably the prosecution were knowledgeable thereof, he was effectively deprived of an opportunity to fully explore this area as a potential foundation for a challenge for cause. Additionally, the defendant was at the very least deprived of knowledge upon which he could intelligently exercise a peremptory challenge, for we do not doubt that any defense attorney would so challenge a prospective juror with such a kinship to an employee of his adversary when, as here, circumstances otherwise permit.
While we are therefore left to speculate upon whether the defendant was prejudiced thereby, we recognize that the relationship itself approached being a basis for challenge for cause. In Thompson, supra, we held in part that a juror who was the brother of a deputy sheriff serving as a witness in chief for the State was subject to challenge for cause because of his close relationship with the deputy sheriff. Also, in Scrivener v. State, 63 Okl.Cr. 418, 75 P.2d 1154 (1938), we held that all doubts regarding juror impartiality must be resolved in favor of the accused. In view of the foregoing, we are of the opinion that the defendant was effectively denied full enjoyment of his right to conduct voir dire examination of this venireman as a possible basis for challenge for cause, and deprived of information upon which to intelligently exercise a peremptory challenge against him.
In his second assignment of error the defendant contends that improper comment by the prosecutor during final closing argument was fatally prejudicial. The State urges that such argument was provoked by defense counsel, and within the bounds of proper retaliatory comment. Pertinent portions of the closing argument by the...
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People v. Diaz
...basis upon which to challenge her peremptorily, if not for cause. (See Odom v. State, supra, 355 So.2d 1381, 1383; Manuel v. State (Okl.Cr.1975) 541 P.2d 233, 237.) In light of the nature and seriousness of the misconduct involved depriving defendant of his right to obtain an impartial and ......
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...fails to disclose pertinent information when inquiry is made. See Perez Enriquez, 1987 OK CR 164, ¶ 7, 740 P.2d at 1206; Manuel v. State, 1975 OK CR 174, ¶¶ 4-8, 541 P.2d 233, 235. Under the facts of this case, if the alleged relationship between Juror Scales and witness Andrews had been kn......
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Slaughter v. State
...it, we have nevertheless considered the merits of issues, even though they were first broached by the defendant."); Manuel v. State, 541 P.2d 233, 239-42 (Okl.Cr.1975) (comments plus other errors mandated ¶103 Clearly here, the prosecutor's comment was unwarranted and error. However, defens......
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Underwood v. State
...was such that Appellant would have removed him peremptorily, had Appellant known it before the jury was seated. In Manuel v. State, 1975 OK CR 174, 541 P.2d 233, a juror failed to disclose during voir dire that he was married to the chief secretary in the prosecutor's office. While defense ......