People v. Boulware

• Decision Date: 07 July 1971
• Citation: 324 N.Y.S.2d 30,272 N.E.2d 538,29 N.Y.2d 135
• Parties: , 272 N.E.2d 538 The PEOPLE of the State of New York, Respondent, v. James BOULWARE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 30

324 N.Y.S.2d 30

29 N.Y.2d 135, 272 N.E.2d 538

The PEOPLE of the State of New York, Respondent, v. James BOULWARE, Appellant.

Court of Appeals of New York.

July 7, 1971.

Eleanor Jackson Piel, New Yrok City, for appellant.

Frank S. Hogan, Dist. Atty. (Herman Kaufman and Michael R. Juviler, New York City, of counsel), for respondent.

SCILEPPI, Judge.

One summer afternoon in August, 1967 defendant, his wife and child gathered with David Richardson and his girl friend in front of a Manhattan stoop. Defendant, who had been 'dabbing at some beer can' with a knife, accidentally cut Richardson when the latter's hand got in the way. Richardson, seeking retribution for this wrong, challenged the defendant to a fight and afterwards emerged victorious. During the course of this embroilment, Richardson scattered the contents of defendant's pockets on the ground. Defendant accused Richardson of taking $160, but this was denied.

Richardson's initial success in this quixotic encounter proved, however, to be a Pyrrhic one. Later that evening, he joined the defendant and some associates in a local tavern. After all had imbibed, defendant renewed his charge that Richardson had taken his money. At the bartender's request, defendant left. Richardson followed and shortly thereafter, a fight broke out. Five eyewitnesses testified that defendant drew a knife and that Richardson attempted to defend himself with a garbage can cover. It was during the course of this final encounter that Richardson suffered a knife wound which proved to be fatal.

Defendant, who had been injured, ran away, but friends of his victim gave chase. He was on his way to a hospital, but was stopped by one Richard Carroll, who attacked the defendant with a broom handle. Carroll was slashed by the defendant who then proceeded to the hospital where he was later apprehended by the police. As a result of these altercations, defendant was indicted for murder in the second degree and assault in the first degree. After a jury trial, he was found guilty of manslaughter in the first degree and assault, second. He appeals to our court from a judgment of the Appellate Division, 35 A.D.2d 925, 316 N.Y.S.2d 970, unanimously affirming this judgment of conviction.

Preliminarily, we observe that no argument is advanced that the proof offered by the People was deficient in any respect. Nor does the defendant question any rulings of the court during the course of the trial. This appeal addresses itself to pretrial matters. Specifically, defendant focuses his quest for a reversal on certain claimed errors occurring during the Voir dire of the veniremen.

This Voir dire was conducted by the parties under the procedure which existed prior to the recent change in the General Rules of the Administrative Board of the Judicial Conference which imposed that function on the Trial Judge. ¹ Consequently, we do not have before us the question whether the Constitution's guarantee of a jury trial precludes Voir dire examinations conducted by the court alone. It is, however, evident that since the right to a jury means a jury which, as far as possible, is unbiased and unprejudiced, some form of Voir dire is necessary so that the concomitant right to challenge prospective jurors may be intelligently and effectively exercised by the parties (see Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759). Initially, we recognize that we are dealing with an area of the law which does not lend itself to the formulation of precise standards or to the fashioning of rigid guidelines. To be sure, it would be a relatively simple matter to circumscribe Voir dire inquiry by reference to the particular challenges for cause (see Code Crim.Proc., §§ 375, 376). However, the very existence of the peremptory challenge (see Code Crim.Proc., § 372) would require an application of Delphic powers for only then would we be able to anticipate every line of inquiry which counsel might deem relevant to the exercise of such a challenge. These considerations compel the observation that it is the function of the trial court, involved and concerned with the quest for the truth, to strike the balance, true, no less in the conduct of the Voir dire than in the conduct of the trial proper. The Judge presiding necessarily has broad discretion to control and restrict the scope of the Voir dire examination. To that end, he may, in order to prevent inordinate interruptions and undue delay in the proceedings, question prospective jurors at the opening of the Voir dire, during the course thereof or after counsel have concluded their examinations ². The only condition imposed is that fair opportunity be accorded counsel to question about matters, not previously explored, which are relevant and material to the inquiry at hand. Thus, in this appeal, we address ourselves to whether the trial court improperly restricted counsel's Voir dire examination.

Resolution of this question is in some measure impeded by the fact that no transcription of the Voir dire appears in the record. By order of the Appellate Division, a hearing was held before a Special Referee who took evidence as to what transpired at the Voir dire. The Referee found that defense counsel had advised the court that he felt that his examination was being unduly restricted. He unsuccessfully moved for a mistrial and requested that the Voir dire be stenographically recorded. Although this request was granted, for reasons which do not appear, no transcription was made. This failure does not, however, mean that a reversal is mandated particularly in view of the overwhelming evidence of guilt against the defendant and counsel's failure to object to the jury as finally selected. We agree with the Appellate Division that the Referee's report 'provides a sufficient factual account for purposes of review' (People v. Boulware, 35 A.D.2d 925, 316 N.Y.S.2d 970) and consequently, take his findings, confirmed by that court, as a substitute for an actual transcript.

It was the finding of the Referee that defense counsel had: 'attempted to question prospective jurors on various matters of law, including (a) the presumption of innocence, (b) the burden of proof, (c) the doctrine of 'reasonable doubt,' (d) the meaning and purpose of an indictment, and (e) the absence of an obligation by a defendant to produce evidence in his own behalf. Upon the objection by the prosecuting attorney, or on its own motion, the trial court refused to permit Harap to inquire into any of these areas of the law.'

We are not persuaded that the court's ruling as to these matters was an abuse of discretion. Although counsel has a right to inquire as to the qualifications of the veniremen and their prejudices so as to provide a foundation for a challenge for cause or a peremptory challenge (see Kreuter v. United States, 10 Cir., 376 F.2d 654, 656--657), it is well settled that it is simply not the province of counsel to question prospective jurors as to their attitudes or knowledge of matters of law (see, e.g., State v. Molina, 5 Ariz.App. 492, 428 P.2d 437; People v. Love, 53 Cal.2d 843, 3 Cal.Rptr. 665, 350 P.2d 705; Pinion v. State, 225 Ga. 36, 165 S.E.2d 708; People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325; State v. Morris, 222 La. 480, 62 So.2d 649; Twining v. State, 234 Md. 97, 198 A.2d 291; People v. Lambo, 8 Mich.App. 320, 154 N.W.2d 583; State v. Bauer, 189 Minn. 280, 249 N.W. 40; State v. Smith, 422 S.W.2d 50 (Sup. Ct., Mo.), cert. den., 393 U.S. 895, 89 S.Ct. 150, 21 L.Ed.2d 176; Oliver v. State, 85 Nev. 418, 456 P.2d 431; State v. Douthitt, 26 N.M. 532, 194 P. 879; Kephart v. State, 93 Okl.Cr. 451, 229 P.2d 224; Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 vacated on other grounds 392 U.S. 647, 88 S.Ct. 2227, 20 L.Ed.2d 1344).

As the court observed in State v. Smith (422 S.W.2d 50, 67--68, Supra), 'asking whether prospective jurors have any personal feelings for or against a rule of law is like asking whether they think the law is good or bad.' Indeed, nearly 70 years ago, our court held that it was beyond the scope of proper Voir dire examination for counsel to propound questions as to the presumption of innocence and burden of proof in a criminal case (People v. Conklin, 175 N.Y. 333, 67 N.E. 624). As Judge O'Brien wrote for the court: 'The qualifications of a juror do not depend in any degree upon his knowledge or want of knowledge of the law of evidence as...