Smith v. State

• Decision Date: 18 September 1974
• Docket Number: No. 47763,47763
• Citation: 513 S.W.2d 823
• Parties: Herman Calvin SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 823

513 S.W.2d 823

Herman Calvin SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 47763.

Court of Criminal Appeals of Texas.

Sept. 18, 1974.

Rehearing Denied Oct. 9, 1974.

Charles W. Tessmer and Ronald L. Goranson, Dallas (on appeal only), William H. Vitz, McKinney, for appellant.

Tom O'Connell, Dist. Atty., Elliott Knott and Robert Dunn, Asst. Dist. Attys., McKinney, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed at imprisonment for life.

A death penalty was assessed by the jury on May 15, 1970. The death penalty was commuted to imprisonment for life by the Honorable Preston Smith, Governor of Texas, by proclamation dated October 20, 1972.

The record reflects that police officers Ashley and Burk responded to a call to go to 1008 Daniels Street in McKinney, where they were informed by appellant upon arrival that Wilfred Olliphant had shot at him. The officers entered the house of Mrs. Baby Ruth Black, arrested Olliphant, and walked toward the police car with him. At this juncture, appellant advised Ashley and Burk that this was the person who had shot at him and that he, appellant, wanted to kill him. Ashley testified that he saw a pistol in appellant's hand, heard a gunshot and felt a pain in his abdomen. Ashley recounted the events which occurred thereafter. Burk struck appellant with a shotgun. Appellant shot Burk. Ashley shot appellant.

Officer Burk died as the result of gunshot wounds. Appellant, testifying in his own behalf, stated that he was firing at Olliphant when he hit Ashley and that his gun accidentally discharged when Burk was hit.

Appellant's first twelve contentions are directed to the refusal of the judge to permit appellant's counsel to ask the following question to twelve prospective jurors during individual voir dire examination:

'In the event that you as a juror believe from the evidence that the defendant is guilty and so find him guilty of the offense of murder with malice as charged in the indictment, could you then, in a proper case where the facts warrant it and the circumstances justify it, consider granting a two year probated sentence where you believe from the evidence beyond a reasonable doubt that the defendant is guilty of murder with malice?'

The record reflects that after individual voir dire examination of fifty-one prospective jurors the court announced that it was going 'to qualify them (veniremen) on the range of punishment' and denied appellant's request to ask the aforementioned question. The court, in each of the complained-of individual voir dire examinations, qualified the veniremen as to the range of punishment, including two years probation and death. The questions were all asked specifically by the court and answered unequivocally by the veniremen. Appellant does not urge that the court failed to properly qualify veniremen as to the range of punishment but contends that the right of being heard by counsel carries with it the right of counsel to personally interrogate the members of the jury panel.

At the outset we reject the State's argument that these contentions should be denied because the appellant is unable to prove 'harm' by showing his peremptory challenges were exhausted or that he had to accept an objectionable juror. Since a question attempting to elicit grounds for a challenge for cause is necessarily also eliciting 'grounds' for peremptory challenges (which may be exercised arbitrarily, Art. 35.14, Vernon's Ann.C.C.P.), the harm in preventing answers to any proper question is the inability to intelligently make use of the peremptory challenges. Meador v. State, 94 Tex.Cr.R. 608, 253 S.W. 297 (Tex.Cr.App.1923); Ortega v. State, 462 S.W.2d 296 (Tex.Cr.App.1970). Appellant is entitled to knowledge of the answers, regardless of content, to ensure knowing challenges. Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (Tex.Cr.App.1959). If the question is proper, an answer denied prevents intelligent use of the peremptory challenges and harm is shown.

The necessity to question freely and broadly on voir dire in order to decide intelligently when to use one's peremptory challenges has been firmly established as a concomitant to the constitutional right to counsel. DeLaRosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967); Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267 (1926); Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072 (1923); Meador v. State, supra.

'As a general rule great latitude should be allowed a party interrogating a venire in order to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, and this court does not look with favor on any unreasonable limitation of this right.' Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855, 856 (1926)

The permissible areas of interrogation to determine the use of peremptory challenges are broad and not to be unnecessarily limited. Asking about bias against parts of the range of punishment is certainly permissible. Indeed, bias against any of the law upon which the defendant is to rely is ground for a challenge for cause and a proper matter for query. Art. 35.16(c)(2), V.A.C.C.P.; Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973).

However, the decision as to the propriety of any question is left to the discretion of the trial court and the only review will be for abuse of that discretion. Reich v. State, supra; Livingston v. State,152 Tex.Cr.R. 302, 214 S.W.2d 119 (Tex.Cr.App.1948); Grizzell v. State,164 Tex.Cr.R. 362, 298 S.W.2d 816 (Tex.Cr.App.1957); Johnson v. State, 467 S.W.2d 247 (Tex.Cr.App.1971). The discretion is abused when a proper question about a proper area of inquiry is prohibited.

While appellant certainly has the right to examine the jurors to the end of forming his own conclusion, Mathis v. State, supra; Olliff v. State, 161 Tex.Cr.R. 336, 276 S.W.2d 839 (1954); Carlis v. State, 121 Tex.Cr.R. 290, 51 S.W.2d 729 (1932); Pendergrass v. State, 121 Tex.Cr.R. 213, 48 S.W.2d 997 (1932), there is also no doubt that reasonable controls may be exercised by the trial judge to limit the questioning for various reasons. Dworaczyk v. State, 172 Tex.Cr.R. 142, 354 S.W.2d 937 (1962); Broussard v. State, 166 Tex.Cr.R. 224, 312 S.W.2d 664 (1958); Barry v. State, 165 Tex.Cr.R. 204, 305 S.W.2d 580 (1957); Kincaid v. State, supra; Johnson v. State, supra; McCarter v. State, 478 S.W.2d 524 (Tex.Cr.App.1972); Lewis v. State, 488 S.W.2d 740 (Tex.Cr.App.1973). Voir dire examination can become the lengthiest part of the proceeding (here comprising over seven hundred pages of the record). To curb some prolixity, it is recognized that courts need have a discretionary area within which the examination might be reasonably limited. One basis for such a limitation is duplication of questioning. Here the trial judge carefully qualified each juror on the entire range of punishment, emphasizing the possible consideration of a two-year probation. Counsel attempted to do the same thing again with no injection of new matter or expansion upon old. There is no error in prohibiting duplicitous questions, where investigation into possibly proper or fruitful matters is not entirely prevented. Barry v. State, supra; Kincaid v. State, supra; Cook v. State, 398 S.W.2d 284 (Tex.Cr.App.1966), and Clowers v. State, 146 Tex.Cr.R. 1, 171 S.W.2d 143 (1943).

Appellant cites several cases for the premise that the trial judge may not limit voir dire beyond requiring relevancy. In Meador v. State, supra, and Mathis v. State, supra, questioning was precluded totally in appropriate areas of investigation for peremptive challenges or challenges for cause. Unlike here, there was no duplication of earlier questioning and no earlier unequivocal answers. Appellant also cites DeLaRosa v. State, supra, as authority for his position; however, the error there was a patently unreasonable limiting of the time for voir dire to thirty minutes, permitting little intelligent questioning.

In Plair v. State, supra, the trial court was held to be in error for refusing to allow the appellant to inquire of the venire their attitudes concerning suspended sentences after the judge had asked the panel generally about it and where it was in issue in the case. However, it should be noted that in Plair the judge's questioning was directed to the panel as a whole. See Carlis v. State, supra.

In the instant case the State sought the death penalty. Under Art. 35.17, V.A.C.C.P., ¹ the appellant was entitled to examine each juror individually on voir dire apart from the entire panel. This right was accorded appellant except as to the matter of range of punishment to certain prospective jurors where such question had been fully covered in the individual examination of the veniremen by the court. While counsel is entitled to further question a prospective juror on principles propounded by the court, ² we do not perceive such right of individual examination to extend to the asking of duplicitous questions. The specificity of the court's examination of each venireman and the similarity of same to the question appellant sought to pursue lead us to the conclusion that the court's action does not constitute an abuse of discretion and require reversal.

'1. When the court in its discretion so directs, in a misdemeanor or non-capital felony case, or in a capital case in which the state's attorney has made known that he will not seek the death penalty, the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.

In his thirteenth contention, appellant urges that the questioning of character witness Reverend M. L. Bailey by the prosecutor requires reversal. The record reflects the following occurred:

'Q. Mr. Bailey, have you heard that Herman Calvin Smith was accused of killing E. J. Crockett?

'A. I have heard that.

'Q. And...