State v. McCauley

• Decision Date: 15 January 1973
• Docket Number: No. 52168,52168
• Citation: 272 So.2d 335
• Parties: STATE of Louisiana v. Jimmy Michael McCAULEY.
• Court: Louisiana Supreme Court

Page 335

272 So.2d 335

STATE of Louisiana v. Jimmy Michael McCAULEY.

No. 52168.

Supreme Court of Louisiana.

Jan. 15, 1973.

Joe J. Tritico, Lake Charles, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.

HAMLIN, Chief Justice:

Defendant appeals from his conviction of the crime of murder of Isa Pomier, LSA-R.S. 14:30, and his sentence to death. Twelve bills of exceptions are presented for our consideration and determination.

BILLS OF EXCEPTIONS NOS. 1, 2 AND 3

Bill of Exceptions No. 1 was reserved when the trial court sustained the State's objection to the following question propounded by defense counsel to prospective juror Kenneth W. Hine:

'If you are accepted as a juror, Mr. Hine, since the sentence might be within your prerogative--that is, if you should be satisfied that this defendant is guilty of murder--then there are two things we are entitled to know. Have you now made up your mind, if you should determine that this defendant is guilty of murder, which kind of sentence you would impose?'

Bill of Exceptions No. 2 was reserved when the trial court sustained the State's objection to the following question propounded by defense counsel to prospective juror Bennie J. Banken:

'Now, then, the Court will also charge you, Mr. Banken, and the other jurors, that if the State, the prosecution in this case, should establish that this defendant was guilty to your satisfaction and beyond a reasonable doubt, of either murder or manslaughter, which is a lesser included offense, then in order for this defendant to be found not guilty by reason of insanity, then, and only then it is his responsibility--he must then shoulder the burden and establish by a preponderance of the evidence--that's a little bit more, and less than reasonable doubt--that at the time of the commission of this alleged instance he didn't know what he was doing, or he was not in control of his mental. . . .'

Bill of Exceptions No. 3 was reserved when the trial court sustained the State's objection to the following question propounded by defense counsel to prospective juror John M. Duhon:

'* * * The Court will also charge you, Mike, that the State must bear the burden of proving the allegations contained in this complaint or Bill of Indictment, that they must do so with proof that is to your satisfaction and beyond a . . ..'

Defense counsel urges herein that:

'The questions requested by the defendant in the instant case were clearly directed toward the sentences which might be imposed. The question directed as Juror Hine was clearly framed to determine if he had any predisposition as to the sentence which would be applicable if the defendant were found guilty. The question directed at Juror Banken, if allowed to have been completed, was framed to determine if he had any predisposition toward a qualified verdict. Each of these questions is within the bounds of the State v. Henry (196 La. 217, 198 So. 910) decision and should clearly not have been denied because of State v. Richey. (258 La. 1094, 249 So.2d 143)

'The prejudice caused by the refusal to allow these particular questions is clear in that it denied the defendant an opportunity to discover a ground for a challenge for cause or preemptory challenge. In fact, at the time the proposed question was disallowed on voir dire examination of Mr. Duhon, the defense had used all of its pre-emptory challenges and as a result Mr. Duhon became the twelfth accepted juror and subsequently the jury foreman. The effect of the denial of the question was to prevent the defense from establishing grounds for challenge for cause thereby forcing it to accept this juror. This is analogous to instances where a challenge for cause is overruled, and the defendant's preemptory challenges are exhausted before the jury is obtained. It is settled that in such a case the accused is prejudiced and the verdict will be set aside. State v. Henry, 197 La. 999, 3 So.2d 104, 111 (1941), citing State v. McCoy, 109 La. 682, 33 So. 730 (1903).

'The substance of the completed question which counsel proposed to ask Mr. Duhon would have included the following additional factors:

'. . . and if you were satisfied from the evidence that the defendant was guilty of murder do you presently have an opinion as to the nature of the punishment or the kind of sentence you could impose.'

The contents of this question would then have been the same as the question propounded to Juror Kenneth Hine, and if the answer was in the affirmative the juror would then be asked whether such an opinion could be affected or changed by the evidence.

'The defendant contends that the questions were neither long nor did the portions of the questions asked tend to usurp the power of the judge to charge the jury. At the time the proposed question was disallowed on voir dire examination of Mr. Duhon, the defense had used all of its preemptory challenges and as a result Mr. Duhon became the twelfth accepted juror who was later to become the jury foreman. The defendant acknowledges that the presiding judge had discretion to pass upon the qualification of jurors and that his ruling on such matters will not be set aside unless the error is manifest. In refusing, however, to allow counsel to ask the incompleted questions as well as the proposed complete questions, the trial judge, as did the judge in Henry, abused his discretion.

'If the prosecution can exclude persons who are opposed to capital punishment, how can the defense fairly be denied an opportunity to discover and exclude those persons opposed to life imprisonment? How can a jury be impartial if its members would only apply one penalty to a guilty person when the legislature has made it their function to deliberate and choose between two penalties? In addition to destroying the impartiality of the jury, denying these questions also violates the fundamental principle that justice must be individualized. That is, a jury should decide from the evidence presented at trial whether a given defendant should live or die. The decision is based on his own individual merits, faults, virtues, and shortcomings. If a jury has decided a penalty in advance of learning the facts of a case, all semblance of matching the punishment to the crime disappears. The defendant has been prejudged regardless of his individual worth, and regardless of the circumstances surrounding the crime.

'Defendant had a right to inquire of Juror Hine if he could impose a certain kind of sentence if his guilt should be proven and defendant had a right to inquire of Juror Banken if he could vote for not guilty by reason of insanity if defendant was proven guilty of murder or manslaughter and if it was proven that he did not know what he was doing, etc., when the act was committed, and defendant had a further right to inquire of the juror John M. Duhon if he had an opinion as to whether he could vote for life imprisonment or capital punishment, if defendant's guilt was shown beyond a reasonable doubt. See State v. Johnson, 226 La. 30, 74 So.2d 402 (1954); State v. Henry, 197 La. 999, 3 So.2d 104 (1941).'

After defense counsel had propounded the question supra to prospective juror Kenneth W. Hine, and the State had made its objection, the trial court addressed defense counsel as follows:

'Well, I'll sustain the objection to the question as phrased. I think you can ask him whether or not he would be able to arrive at one of the several verdicts that he is permitted to reach under the law. But, of course, the District Attorney is correct, the Court is the one that actually imposes sentence. However, it is within the prerogative of the jury to decide whether that sentence will be with or without capital punishment. On the basis of the question as phrased, I'll sustain it. If you want to question him further as to whether he could render either one or the other, then I certainly think it would be a valid question.'

Defense counsel reserved a bill of exceptions and did not rephrase his question.

Article 871 of the Code of Criminal Procedure provides that a sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilty, and it shall be pronounced orally in open court and recorded in the minutes of the court.

Defense counsel's question to prospective juror Hine was improper; the imposition of sentence is the prerogative of the trial judge and not that of a juror. The trial judge properly sustained the State's objection and committed no reversible error in not allowing defense counsel to question the prospective juror as to the sentence he could impose. The jurisprudence cited by defense counsel with respect to the latitude allowed defense counsel in the questioning of prospective jurors does not extend to such a question as was herein propounded.

The trial court correctly disallowed the questions set forth supra in Bills of Exceptions Nos. 2 and 3; their statements encroached on the prerogative of the trial judge to instruct the jury as to the law of the case; his per curiam properly recites:

'The objection involved in this bill was sustained to a lengthy statement of law being expounded by defense counsel to a prospective juror on his voir dire examination because this is not the purpose of such examination and it is within the province of the Court to instruct the jury as to the applicable law. State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). In this case the Court explained some phases of the law to the jurors on their voir dire examination and it is convinced they were fully instructed as to the law to be applied in the Court's charge at the conclusion of the trial. No objections were made to the charge either by defense counsel or the State.' (Per Curiam to Bill of Exceptions No. 2; it also applies to Bill of...