Rogers v. State

• Decision Date: 21 October 1974
• Docket Number: No. CR,CR
• Citation: Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (Ark. 1974)
• Parties: Harold Eugene ROGERS, Appellant, v. STATE of Arkansas, Appellee. 74--59.
• Court: Arkansas Supreme Court

Page 79

515 S.W.2d 79

257 Ark. 144

Harold Eugene ROGERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74--59.

Supreme Court of Arkansas.

Oct. 21, 1974.

Rehearing Denied Nov. 18, 1974.

George Howard, Jr., Pine Bluff, Sharon Bernard Miller, Helena, Nathaniel R. Jones, James I. Meyerson and George E. Hairston, New York City, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury convicted appellant of first degree rape (Ark.Stat.Ann. § 41--3401 (Supp.1973)) and assessed his punishment at life imprisonment in the State Department of Correction. For reversal of that judgment appellant first contends that the trial court erred in not allowing sufficient voir dire examination by his defense counsel to permit an intelligent exercise of his right to make an informed decision whether to challenge the veniremen peremptorily or for cause.

The purpose of voir dire examination is to provide the litigants sufficient information about the proposed juror to intelligently exercise their challenges peremptorily or for cause. Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965). The due process clause of the federal Fourteenth Amendment requires that counsel be permitted to interrogate the prospective jurors about racial bias. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). In Cochran v. State, 256 Ark. ---, 505 S.W.2d 520 (1974), two defendants were convicted of assaulting a white officer during an assemblage or riot. The court generally inquired of the jurors as a group whether the difference in race would tend to influence their verdict. Their silent response was accepted by the court as indicating the racial difference would not influence their verdict. The defense counsel was not permitted to inquire into possible racial prejudice. There we held the trial court abused its discretion by unduly restricting the voir dire.

In the case at bar the appellant is a black man and the rape victim is a white woman. In two instances appellant asserts specifically that his voir dire was unduly restricted. The first example relates to the examination of prospective juror Siebenmorgan. The appellant's defense counsel, without objection or interruption by the court, was permitted to propound questions bearing directly on the issue of his mental attitude toward any racial bias. Siebenmorgan responded that he did not 'have any racial prejudice;' he would not 'believe a white police officer any more than (he) would believe a black man;' he would not 'believe a white woman any more than (he) would believe a black man;' he did not 'think there's any difference between black people and white people;' his children attended 'public schools' which are 'integrated;' he is a Catholic and there are 'black members' in his church; he had never had an unfortunate experience with a black man and neither had his family; and he had never had any problem with 'interracial social gatherings.' Then the question was propounded 'would you have any problem with your daughter dating a black man?' The court then remarked that he did not think this type of question 'has anything to do with this law suit.' However, he then permitted the question to be answered. The juror responded that it would present a problem. However, the prospective juror then assured defendant's counsel that the problem 'would have no bearing on this case.' When the counsel persisted in this type of questioning, the court stated '(N)ow, I think we've gone into that far enough. You've asked him enough. As I explained at barside here, I think I've allowed counsel great latitude * * *.'

The other example asserted as being too restrictive of voir dire examination relates to prospective juror Bartley. Appellant's counsel was permitted to question him with reference to racial prejudice. In answer to these questions this prospective juror stated that he didn't 'have any racial prejudice;' there is no 'difference between a black and white person' except 'color;' he did not believe black people are 'lazier' or 'less intelligent' than white people; he did believe black people were 'better athletes' than white people. Thereupon the trial court interrupted and said it was not necessary to answer that question since it was not proper voir dire.

As previously indicated, appellant contends that his counsel should have had the right to further pursue the interrogation of these witnesses in order to make an informed decision as to whether to challenge these jurors peremptorily or for cause. In other words, his counsel was not permitted to show 'subtle prejudices' or 'subjective racism' which these two jurors might have. It is well established that the trial court is accorded a wide discretion in determining the extent or scope of the interrogation of prospective jurors. Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422 (1961). There the defendant was being tried for dynamiting a building during a racial school crisis. After extensive questioning of the jurors by defense counsel as to their racial views, the trial court refused to permit the question '(a)re you a segregationist or an integrationist' to be propounded to the jurors. There we said that such a question 'would have no bearing on his fairness as a juror to sit in the trial of a case being tried for dynamiting a building' and 'would . . . inject an issue not pertinent to testing the capacity and competency of the jurors and would have tended to create a bias or prejudice that would also have embarrassed the veniremen.'

In the case at bar, the transcript reveals that the voir dire consisted of approximately 473 pages and the court permitted most of this to be conducted by the defense counsel. In our view the trial court accorded the defense counsel great latitude in questioning the prospective jurors in a searching inquiry as to the existence of any subtle or subjective bias that would prevent a juror from rendering a fair and impartial verdict. The appellant has not demonstrated that he was denied any fundamental fairness in interrogating the jurors in order to make an informed decision whether to challenge the veniremen peremptorily or for cause. The trial court did not abuse its discretion.

Appellant also asserts that it was error since the trial court failed to interrogate the prospective jurors about their racial attitudes, citing Ham v. South Carolina, supra. We do not consider this case applicable in the case at bar inasmuch as the statutory framework in that state provides for the voir dire examination of potential jurors be conducted by the court after accepting questions from the attorneys. That does not exist in our state. Griffin v. State, supra. Furthermore, the appellant has not demonstrated that the trial court was ever asked to conduct the voir dire examination. Therefore, the issue is raised for the first time on appeal and cannot be considered. Appellant's defense counsel, as previously indicated, was permitted to question extensively the prospective jurors with reference to any possible racial bias.

Appellant next asserts that the 'trial court erred in denying defense counsel's motion for a mistrial based on the state's exercise of its peremptory challenges to systematically exclude black persons from the jury in violation of the appellant's Fourteenth Amendment rights.' Six of the seven prospective jurors which were peremptorily challenged by the state were black. This resulted in an all white jury. In Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), a black man was convicted of raping a white woman and sentenced to death. All six prospective black jurors were struck by the prosecutor by peremptory challenges. In affirming the conviction the court held that this procedure did not constitute a violation of the Fourteenth Amendment, '. . . we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.' '. . .. (We) cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case.' In Jackson v. State, 245 Ark. 331, 432 S.W.2d 876 (1968), we followed Swain and stated the rule to be '(T)he mere fact that the state peremptorily challenged all the negroes on the petit jury does not constitute a showing that any of appellant's constitutional rights were violated.'

It appears that the prosecutor categorically denied that he was using his peremptory challenges merely to exclude blacks. The voir dire examination of the prospective black jurors peremptorily challenged by the state revealed that all of them except one were acquainted with either the appellant or members of his family. It appears that the other juror was reluctant to serve. The record reflects that blacks have consistently served as trial jurors. In Swain, supra, Justice White, writing for the majority, said:

Although historically the incidence of the prosecutor's challenge has differed from that of the accused, the view in this country has been that the system should guarantee 'not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.' Hayes v. State of Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887).

See also Green v. State, 222 Ark. 222, 258 S.W.2d 56 (1953). In the case at bar, we hold appellant has not demonstrated any systematic misuse by the state of its right to exercise its peremptory challenges.

Two prospective black jurors arrived late for the empanelment and they were not included in the drawing for the initial 24 jurors. Upon arrival their names were included 'in the box.' However, the initial empanelment was not redrawnas...