State v. Frederiksen

• Decision Date: 28 May 1985
• Docket Number: No. 14124-4-I
• Citation: State v. Frederiksen, 700 P.2d 369, 40 Wn.App. 749 (Wash. App. 1985)
• Parties: STATE of Washington, Respondent, v. George Fred FREDERIKSEN, Appellant.
• Court: Washington Court of Appeals

Page 749

40 Wn.App. 749

700 P.2d 369

STATE of Washington, Respondent, v.George Fred FREDERIKSEN, Appellant.

No. 14124-4-I.

Court of Appeals of Washington Division 1.

May 28, 1985.

Julie A. Kesler, Washington Appellate Defenders Association, Seattle, (court-appointed), for appellant.

Norman K. Maleng, King County Pros.Atty., H. Duane Evans, Deputy, Seattle, for respondent.

SWANSON, Judge.

George F. Frederiksen(Frederiksen) appeals his jury conviction of second-degree assault while armed with a deadly weapon and a firearm.He claims that the trial court erred in disallowing voir dire questions regarding veniremen's attitude toward self-defense, that the State did not prove beyond a reasonable doubt the absence of self-defense, and that the jury instructions improperly placed upon the defendant the burden of proving self-defense.

On the evening of October 9, 1983, Wayne Nelson(Nelson) and three friends were in Seattle's China Chef Restaurant lounge.Frederiksen sat alone at a separate table but on the same bench as Nelson.According to Nelson, when Frederiksen slid down the bench to sit next to him and later, after having moved back to his own table, when Frederiksen asked one of Nelson's friends to dance, Nelson asked him to leave them alone.After the second time, Frederiksen asked if Nelson wanted to "settle this" outside.Nelson replied that he had no reason to do so.

After Frederiksen finished his drink, stood up and again asked Nelson if he wanted to settle things outside, Frederiksen swung at Nelson, hitting him on the hand and on the side of the head.Yelling an obscenity at Nelson, he ran out of the restaurant.Nelson ran after Frederiksen, who looked back as he was going outside.When Nelson went out the door, he saw Frederiksen at his right four to five feet away, facing him in the dark.The defendant was reaching to get something out of his coat pocket.Nelson grabbed him by the shoulder and forearm and was shot during the ensuing struggle.Nelson's friend took the gun from Frederiksen and restrained him until the police arrived.

Frederiksen admitted swinging at Nelson but denied asking him to step outside.He testified that after swinging at Nelson, he immediately realized his mistake and hurriedly left the lounge.When he saw Nelson running after him, he tried to get his gun out to scare Nelson away.However, before he could do so, Nelson had grabbed his neck, cutting off his air supply since he had had a tracheotomy.According to Frederiksen, he was on the verge of blacking out when he pulled the trigger.He claimed that he was still trying to run away when Nelson caught up with him.

Frederiksen was convicted by a jury of second-degree assault while armed with a deadly weapon and a firearm and was sentenced to a ten-year prison term.

At trial during voir dire of a prospective juror, the defense counsel asked a question regarding self-defense, with the following court response:

Q Okay.If the judge were to instruct you that a person has a right to self-defense, would you be able to follow that instruction?

THE COURT: Counsel, I think it's appropriate that we not have any discussion of any particular issues in the case other than what we've already talked about.Ask another question, Mr. Goldsmith.

The defendant contends that the trial court erred in refusing to permit questions as to veniremen's attitude toward self-defense.

CrR6.4(b) provides in pertinent part:

(b) Voir Dire.A voir dire examination shall be conducted for the purpose of discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable an intelligent exercise of peremptory challenges....* The judge and counsel may ... ask the prospective jurors questions touching their qualifications to serve as jurors in the case, subject to the supervision of the court as appropriate to the facts of the case.

Thus to gain information that may lead to a challenge for cause or a peremptory challenge, counsel may ask juror qualification questions, subject to the court's supervision.

The voir dire scope should be coextensive with its purpose, which

is to enable the parties to learn the state of mind of the prospective jurors, so that they can know whether or not any of them may be subject to a challenge for cause, and determine the advisability of interposing their peremptory challenges.

State v. Laureano, 101 Wash.2d 745, 758, 682 P.2d 889(1984)(quotingState v. Tharp, 42 Wash.2d 494, 499-500, 256 P.2d 482(1953)).Moreover,

it is not "a function of the [voir dire] examination ... to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law."

(Citation omitted.)People v. Williams, 29 Cal.3d 392, 174 Cal.Rptr. 317, 325, 628 P.2d 869(1981).

"[T]he defendant should be permitted to examine prospective jurors carefully, 'and to an extent which will afford him every reasonable protection.' "(Citation omitted.).Laureano, supra.However, the limits and extent of voir dire examination fall within the trial court's discretion.Laureano, 101 Wash.2d at 757, 682 P.2d 889.The trial court's exercise of discretion is limited only by the need to assure a fair trial by an impartial jury.United States v. Jones, 722 F.2d 528, 529(9th Cir.1983).

The refusal to permit specific questions is not reversible error absent an abuse of discretion, which will be found only if the questioning is not reasonably sufficient to test the jury for bias or partiality.Jones, supra.Absent an abuse of discretion and a showing that the accused's rights have been substantially prejudiced thereby, the trial judge's ruling as to the scope and content of voir dire will not be disturbed on appeal.United States v. Robinson, 475 F.2d 376, 380(D.C.Cir.1973);Haslam v. United States, 431 F.2d 362(9th Cir.1970), aff'd on reh'g, 437 F.2d 955, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142(1971);seeWilliams, supra29 Cal.3d 392, 174 Cal.Rptr. at 327-28, 628 P.2d 869.

The trial court is vested with discretion (1) to see that the voir dire is effective in obtaining an impartial jury and (2) to see that this result is obtained with reasonable expedition.Therefore, the trial court may refuse to permit questions that are only speculatively related to prejudice.Jones, supra.

Three situations require specific voir dire questions because of a real possibility of prejudice: (1) when the case carries racial overtones; (2) when the case involves other matters (e.g., the insanity defense) concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact; and (3) when the case involves other forms of bias and distorting influence which have become evident through experience with juries (e.g., the tendency to overvalue official government agents' testimony).Jones, supra at 529-530(citingRobinson, supra at 381);seeWilliams, supra29 Cal.3d 392, 174 Cal.Rptr. at 325, 628 P.2d 869.

The defendant claims that the present case, involving a self-defense claim, falls into the second type of situation because firearms' use is controversial, as is the State's having the burden of disproving self-defense.However, the Robinson court, supra at 381, concluded that self-defense in general did not fall within any of the three classes raising a real possibility of bias.SeePeople v. Coleman, 124 Ill.App.3d 285, 79 Ill.Dec. 802, 464 N.E.2d 706, 709-10(1984)(disallowing self-defense voir dire questions not abuse of discretion).

Moreover, although the defendant claims that self-defense-related questions were necessary to unearth bias because firearms' use is controversial, voir dire questions regarding firearms were asked.The trial court itself asked all of the veniremen questions regarding any experience with firearms, participation in pro- or anti-gun ownership organizations, or strong feelings as to gun ownership that might compromise their ability to be fair.Thus the record indicates a searching inquiry as to the veniremen's attitude toward firearms' use.

As for the defendant's contention that self-defense questions were necessary because of possible jury resistance to the State's having the burden to disprove self-defense, the record on review does not indicate that defense counsel sought to ask questions about the State's burden of proof as to self-defense.

The trial court disallowed a general question as to the venireman's ability to follow a right-to-self-defense instruction.A "litigant's method of challenging a trial court's ruling on permissible voir dire questions should be specific."State v. Brown, 547 S.W.2d 797, 800(Mo. banc 1977).Here defense counsel objected as follows to the court's ruling that self-defense questions were inappropriate:

MR. GOLDSMITH: I have a problem with the Court's failure to allow me to inquire as to their predisposition toward general self-defense, because I think that there may be some quarrel with that among some people, and I'm afraid that if I can't inquire into that, I would be unable to detect people prejudiced against that defense, and thus could possibly be stricken for cause because that is likely to be a defense, and an instruction that they will get which they will be required to follow.

* * *

MR. GOLDSMITH: So I would object to my inability to inquire into that area.

(Emphasis added.).

The following colloquy then ensued:

THE COURT: ... I don't believe that's an appropriate inquiry.The jurors have been reminded of their responsibility to follow the law regardless of what they believe it is or ought to be.I think that type of questioning borders too closely in my judgment on asking them to speculate about a...