People v. Simpson, 2054

• Decision Date: 22 December 1966
• Docket Number: No. 2054,No. 2,2054,2
• Citation: 146 N.W.2d 828,5 Mich.App. 479
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. A. J. SIMPSON, Arzo Carson and William Griffin, Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan — District of US

Page 828

146 N.W.2d 828

5 Mich.App. 479

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. A. J. SIMPSON, Arzo Carson and William Griffin, Defendants-Appellants.

Cal. No. 2054.

Court of Appeals of Michigan, Division No. 2.

Dec. 22, 1966.

Milton R. Henry, Pontiac, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for appellee.

Before QUINN, P.J., and FITZGERALD and T. C. KAVANAGH, JJ.

FITZGERALD, Judge.

Defendants in this case were charged with having broken into a commercial building in the nighttime in the city of Pontiac with intent to commit the crime of larceny therein under the provisions of C.L.1948, § 750.110 (Stat.Ann.1962 Rev. § 28.305.) All were found guilty by a jury and defendant Simpson was sentenced to 4 to 10 years, defendant Griffin to 3 to 10 years, and defendant Carson to 1 to 10 years.

On appeal, counsel for defendants urges among his allegations of error a question of first impression, the others being more familiar to the criminal jurisprudence of this State.

The novel question presented revolves around the inquiries submitted by counsel for defendants to the trial court upon that court's refusal to permit counsel for defendants to conduct the Voir dire of prospective jurors. The court, in electing to conduct the Voir dire examination, declined to propound inquiries to the jurors in the following areas:

a. Questions as to the religion, if any, of the jurors,

b. Questions as to the familiarity of the jurors with the meaning and roles of established negro organizations and other organized groups, and,

c. The question of whether each candidate for jury duty felt himself or herself the peer of each of the defendants.

Counsel makes the further allegations that the prosecution acted systematically and deliberately to remove from the panel all persons who had 'even the remotest contact with negro persons in their past' and further alleges that defendants were required to accept a jury they deemed unsatisfactory after exhausting all of their peremptory challenges, and after a denial by the court of their claim of entitlement to challenge for cause.

Since these questions arose prior to trial and are fundamental to the entire proceedings, we examine them first. That the trial court may permit attorneys to conduct the examination of prospective jurors or may itself conduct the examination is established by GCR 1963, 511.3. This being a discretionary matter with the trial court, it is difficult to discern any error by the trial court's election to conduct the Voir dire. Error, if any, must arise in the manner of conducting that Voir dire and whether discretion was abused in refusal to ask proper and relevant questions submitted to the court. In assaying the questions, the overriding consideration must be whether the answers thereto were essential to counsel for an intelligent exercise of his challenges in his effort to obtain a fair and impartial jury.

The questions proffered to the court by counsel in this case contain overtones that do not impress us as being indispensable in securing a proper panel.

It should be noted at the outset that the trial court's conduct of the Voir dire, by any standard assigned, was thorough, competent and far-reaching. The issue before us is whether these specific questions should have been asked to insure these defendants a fair and impartial panel.

A reading of the record impresses us that the trial court conducted this Voir dire in an extremely fair and judicious manner. Following the usual questions asked in a criminal case concerning prior jury duty, acquaintanceship with or relation to law enforcement officers, whether prospective jurors have been the victim of any type of crime of violence or had their property broken into, the court asks the following question:

'Do any of you have any reason in your background or anything in your life, which would preclude you from rendering a fair and impartial verdict in this case?'

There continues 81 pages of transcript of special questions asked on behalf of defendants and exercise of challenges. Counsel for defendants complains because the court refused to remove prospective jurors for cause where they showed no contact with negroes socially or informally, read no negro publications and expressed no familiarity with negro institutions, tying these qualifications in with the point that defendants were all negroes and could only be tried fairly by a jury which met all of the tests propounded by defense counsel in the questions, supra.

With this we cannot agree. No authority is offered as to a religious qualification for jury duty, nor does the single authority which defense counsel cites, Swain v. State of Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, stand for the propositions asserted. Further, we can find neither authority nor logic for the contention that a juror must be familiar with, or sympathetic to a given defendant. Impartiality rather than empathy is the true test.

No showing of actual prejudice concealed by a juror is made and a thoughtful and contemplative reading of the record does not indicate that the court abused its discretion by refusing to ask the specific questions set forth.

Further, the record indicates that the trial court allowed a wide latitude of special questions directed along the...