McGee v. State

• Decision Date: 12 January 2001
• Docket Number: No. 06-99-00095-CR,06-99-00095-CR
• Citation: 35 S.W.3d 294
• Parties: (Tex.App.-Texarkana 2001) ELROY JAMES MCGEE, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 294

35 S.W.3d 294 (Tex.App.-Texarkana 2001)

ELROY JAMES MCGEE, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00095-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted January 11, 2001

Decided January 12, 2001

On Appeal from the 248th Judicial District Court Harris County, Texas Trial Court No. 779775

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Justice Grant

Elroy McGee appeals from his conviction for murdering his wife. Trial was to a jury. He pleaded true to one enhancement allegation, and the jury assessed his punishment at seventy-five years' imprisonment.

McGee contends that his conviction should be reversed because of improper restrictions placed by the court upon his voir dire questions, by improperly admitting hearsay, and by limiting mitigation evidence at the punishment phase of trial.

The evidence shows that McGee, who is virtually illiterate and has a history of hearing voices and has been prescribed psychotropic medication, was found competent to stand trial for the murder of his wife. He gave a statement admitting the murder to the police, who wrote the statement for him and read it orally before McGee signed the transcription. There was testimony by his neighbor, Phyllis Williams, that she heard a scream followed by several gunshots from McGee's house. She testified that she saw McGee run away from the house and that she went to the house and found his wife lying on the garage floor with a gunshot wound to her chest. McGee turned himself in to the police, telling them that he had shot his wife. After one false start, where he took police to the wrong location, McGee took police to his mother's house, where they found the pistol used in the shooting.

McGee first contends that the court improperly restricted the scope of his voir dire questioning of the jury panel. The Sixth Amendment guarantees the assistance of counsel and a trial before an impartial jury. U.S. Const. amend. VI. Part of this constitutional guarantee is an adequate voir dire to identify unqualified jurors. Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998). Essential to the guarantee is the right to question veniremembers in order to intelligently exercise peremptory challenges and challenges for cause. Raby, 970 S.W.2d at 10; Linnell v. State, 935 S.W.2d 426, 428 (Tex. Crim. App. 1996); Dinkins v. State, 894 S.W.2d 330, 344-45 (Tex. Crim. App. 1995). The court in Raby quoted Hernandez v. State, 508 S.W.2d 853, 854 (Tex. Crim. App. 1974): "[T]he right to propound questions on voir dire, in order to intelligently exercise peremptory challenges, is of the greatest importance."

The scope of voir dire is therefore broad, and an accused is generally entitled to question prospective jurors on any matter that will be an issue at trial. Dinkins, 894 S.W.2d at 344. Error in the denial of a proper question which prevents the intelligent exercise of counsel's peremptory challenges is an abuse of discretion. Atkins v. State, 951 S.W.2d 787, 790 (Tex. Crim. App. 1997); Allridge v. State, 762 S.W.2d 146, 163 (Tex. Crim. App. 1988). It is the propriety of the question which the accused sought to propound that is determinative of the issue. Green v. State, 934 S.W.2d 92, 106 (Tex. Crim. App. 1996). Questions that probe into bias and prejudice against the applicable law are permissible. Hogue v. State, 711 S.W.2d 9, 27 (Tex. Crim. App. 1986).

However, a party cannot ask veniremembers to commit themselves prior to trial as to how they would consider certain testimony, nor may a prospective juror be asked what he or she would do at any particular stage of the trial under a given set of facts. Standefer v. State, 2 S.W.3d 23, 25 (Tex. App. El Paso 1999, pet. granted). The standard of review when an accused asserts that he was improperly restricted in voir dire questioning is whether the trial court abused its discretion. Skinner v. State, 956 S.W.2d 532, 542 (Tex. Crim. App. 1997). The denial of a proper question during voir dire examination is subject to a harm analysis under Tex. R. App. P. 44.2(a). Gonzales v. State, 2 S.W.3d 600, 604 (Tex. App. Texarkana 1999, pet. ref'd)(opinion on remand).

McGee complains that the court restricted his voir dire in connection with the following lines of questioning. During voir dire, counsel began a series of questions directed at eliciting information from the jurors about their ability to exclude written statements by the defendant if they were shown to be involuntary because of police misconduct. The court sustained an objection to the questioning, and the court warned counsel not to begin a jury argument. Counsel then continued as follows:

VENIREPERSON: I think it would stay in the back of my mind that somebody admitted to doing something. That's my personal opinion.

[DEFENSE COUNSEL]: Okay. So from your own experience, you're saying that you could not disregard it and follow the Court's instructions, correct?

THE COURT: Don't contract with the panel, Counsel.

VENIREPERSON: If somebody admitted to doing something, whether it was involuntary or voluntary, I think it would sway my judgment.

[DEFENSE COUNSEL]: Okay. And what is your name, sir?

VENIREPERSON: Corey Freeland.

[DEFENSE COUNSEL]: How many would agree or have the same opinion as Mr. Freeland?

You're number 3?

VENIREPERSON: 3, sir, yes. I think that if you admit to doing it, I'll say you're guilty.

[BY THE STATE]: Judge, I object to this as an improper question.

THE COURT: Be sustained. Move on, Counsel.

[DEFENSE COUNSEL]: All right. How many simply could not follow the Court's instructions to disregard a confession if it was -

THE COURT: Counsel, the Court has instructed you don't go back into that question.

The State argues that the court did not err in limiting the questioning because the voluntariness of McGee's statements did not come up at trial, although acknowledging that the issue had been raised at a pretrial hearing. This may be a proper argument against harm; it does not meet the question of whether the court's ruling was in error. There was a statement signed by the defendant, and whether McGee's attorney elected to make that an issue at the trial was a matter of trial strategy. The court's refusal to allow the jury to be questioned about the individual jurors' attitudes toward an involuntary statement could be a major factor in that strategy.

The questions by counsel did not attempt to contract with the jury panel, but rather to ascertain their willingness to consider the voluntariness or involuntariness of a statement if the court so instructed them.

Questions by both prosecutors and defense counsel asking a panel whether it could obey the court's instructions have been held proper in different contexts. Bridge v. State, 726 S.W.2d 558, 565 (Tex. Crim. App. 1986); Tate v. State, 939 S.W.2d 738, 746 (Tex. App. Houston [14th Dist.] 1997, pet. ref'd); Capello v. State, 775 S.W.2d 476, 489 (Tex. App. Austin 1989, pet. ref'd).

Article 38.22 of the Code of Criminal Procedure requires the judge to instruct the jury that if it believes or has reasonable doubt that the evidence was obtained in violation of that article, then the jury shall regard any evidence so obtained. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2001). Article 38.22, § 6 specifically provides that when a judge finds that a statement is voluntarily made, the evidence pertaining to such matter may be submitted to the jury and the jury shall be instructed that unless the jury believes beyond a reasonable doubt that the statement is voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof. The judge is further required to appropriately instruct the jury generally on the law pertaining to such statements. Counsel should be entitled to determine potential jurors' willingness to consider the voluntariness or involuntariness of the statement and to follow the judge's instructions pertaining to such statements.

McGee further contends that the court erred by refusing to permit him to question the panel about the jurors' views on prior convictions:

[DEFENSE COUNSEL]: Okay. One of the things that people can sometimes consider is whether or not somebody has been convicted of prior offenses. The law allows you to use prior felony convictions and prior misdemeanor convictions involving moral turpitude in considering whether or not you want to believe that particular witness. There's obviously some problems with this. You may not like that person immediately because you know they're a criminal and that's certainly understandable.

But prior convictions do not mean that somebody can't see something happen, can't remember -

[BY THE STATE]: I object to this as argumentative, Judge.

THE COURT: Be sustained.

[DEFENSE COUNSEL]: And how many believe that a prior conviction simply prohibits somebody from telling you the truth? Anyone at all feel that way? Sometimes a defendant may be a witness and he may have prior convictions. How many would find a defendant guilty of a crime just because he had been convicted of something else sometime in the past?

[BY THE STATE]: I object to that as asking the jurors to commit to a certain set of facts.

THE COURT: That will be sustained.

[DEFENSE COUNSEL]: How many would consider that in terms of - if you were instructed that you could only use prior convictions for assessing credibility, how many would just use it for that purpose to find the defendant guilty?

[BY THE STATE]: I object again to asking to find him guilty.

THE COURT: That will be sustained.

(Emphasis added.)

By this ruling, the court was prohibiting counsel from determining if any juror was not willing to follow the court's instruction concerning prior convictions. A voir...