Summers v. State, 85-148

• Decision Date: 26 September 1986
• Docket Number: No. 85-148,85-148
• Citation: 725 P.2d 1033
• Parties: Henry Joseph SUMMERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1033

725 P.2d 1033

Henry Joseph SUMMERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-148.

Supreme Court of Wyoming.

Sept. 26, 1986.

Richard H. Honaker, Rock Springs, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Mary B. Guthrie, and John W. Renneisen, Sr. Asst. Attys. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and ROONEY, ^* BROWN and CARDINE, JJ., and RAPER, J., Retired.

THOMAS, Chief Justice.

The paramount issue raised in this case is whether the trial judge by his intervention in the process of jury voir dire denied Henry Joseph Summers his right to a fair and impartial jury and in this way deprived him of his right to a fair trial. A corollary of this question is whether the judge erroneously refused to excuse members of the jury panel for cause. As additional grounds for reversal Summers asserts that the court erred in refusing to give an instruction on the right to arm oneself in defense of one's person; that he was denied his right to a fair trial by the conduct of the prosecution in injecting racial prejudice into the case; and that the prosecutor impermissibly commented upon his exercise of his constitutional right to remain silent. We are persuaded that none of the matters argued by Summers constitute error. The judgment and sentence imposed by the district court is affirmed.

In his brief Summers propounds the issues as:

"1. Did the trial court deny Appellant his federal and state constitutional rights to a fair trial by fair and impartial jurors, by creating an atmosphere in which potential jurors were intimidated and afraid to express biases and prejudices, and by erroneously refusing to excuse jurors for cause who expressed biases or prejudices against the accused?

"2. Did the trial court commit reversible error by refusing to instruct the jury on the right to arm oneself in a self-defense situation?

"3. Was Appellant denied his federal and state constitutional rights to a fair trial by the prosecution's injection of the issue of racial prejudice into the case?

"4. Did the trial court err in refusing to grant a mistrial on the ground that the prosecutor impermissibly commented upon Appellant's right to remain silent?"

The State of Wyoming offers as its statement of the issues:

"I. Was voir dire examination of prospective jurors properly conducted?

"II. Was it proper for the trial court to refuse appellant's Instruction 18, which "III. Was racial prejudice introduced into the trial through the cross-examination of the appellant and the direct examination of a rebuttal witness?

dealt with the 'right to arm' in the context of self-defense?

"IV. Did the prosecutor's questioning of a police officer who investigated the shootings constitute an impermissible comment on appellant's right to remain silent?"

The events which resulted in Summers' prosecution for first degree murder and attempted first degree murder commenced in a bar in Rock Springs. In the bar Summers approached Richmond, White and DePaola, and after exchanging words with DePaola Summers beat him up. Summers then left the bar with a friend of his, and they were followed by the other three men. Summers went to his car and obtained a pistol from the trunk. DePaola and Richmond had decided to let the matter drop, but White had continued to follow Summers. White struck Summers, and he was joined in this effort by DePaola. When they became aware that Summers had armed himself they ran off in different directions. Summers shot White as White was running away, and the bullet struck his lower left back. Summers then fatally shot Richmond who had grabbed Summers immediately after the shooting of White.

The charges filed against Summers were first degree murder for the death of Richmond and attempted first degree murder of White. ¹ The appellant was bound over for trial in the district court, and following his plea of not guilty he was tried before a jury. The jury returned verdicts of guilty of second degree murder and attempted second degree murder. ² The trial judge then sentenced Summers to a term of 35 years to life on each count, with the sentences to run concurrently. A more detailed account of the facts involved in the several contentions of error by Summers will be included in the discussion of the respective issues.

Summers' primary claim of error relates to the jury selection process. He argues that the trial judge interjected himself into the voir dire examination of the jury panel in such a way that potential members of the jury were intimidated and became afraid to express their true feelings or the facts demonstrating their bias. The second aspect of this claim of error is that the trial judge erroneously refused, on two occasions, to excuse jurors for cause after they had expressed either bias or prejudice against the accused. He asserts that these rulings required him to utilize a peremptory challenge with respect to one of these two jurors thus preventing him from peremptorily challenging other jurors. In making this claim Summers demands that the court articulate the principles underlying proper voir dire so that similar miscarriages of justice will not occur in the future.

The procedural aspects of the examination of jurors and the process of jury selection is set forth in our court rules. Rule 25, W.R.Cr.P. provides in part "(a) Examination of jurors.--The parties, or their attorneys, may conduct the examination of prospective jurors, but such examination shall be under the supervision and control of the court, and the court may itself conduct such further examination as it deems proper.

"(b) Peremptory challenges.--In every case, including the selection of alternate jurors, the state shall be entitled to the aggregate number of peremptory challenges to which the defendant or defendants are entitled. If the offense charged is punishable by death, each defendant shall be entitled to 12 peremptory challenges. If the offense charged is punishable by imprisonment for more than one (1) year, each defendant shall be entitled to 8 peremptory challenges. * * *"

This rule is supplemented by Rule 701 of the Uniform Rules for the District Courts which provides:

"(a) The only purpose of voir dire is to select a panel of jurors who will fairly and impartially hear the evidence and render a just verdict.

"(b) The court shall not permit counsel to attempt to precondition prospective jurors to a particular result, comment on the personal lives and families of the parties or their attorneys, nor question jurors concerning the pleadings, the law, the meaning of words, or the comfort of jurors.

"(c) The court may inquire of the prospective jurors.

"(d) In voir dire examination counsel shall not:

"(1) Ask questions of an individual juror that can be asked collectively;

"(2) Ask questions answered in a juror questionnaire except to explore some answer in greater depth;

"(3) Repeat a question asked and answered;

"(4) Instruct the jury on the law or argue the case;

"(5) Ask a juror what his verdict might be under any hypothetical.

"(e) The court may assume voir dire if counsel fails to follow this rule. If the court assumes the voir dire, it may permit counsel to submit questions in writing."

Consideration of the substantive aspects of jury selection in a criminal case begins with § 7-11-104, W.S.1977 which provides as follows:

"Challenge for cause shall lie with both the defense and the prosecution, and all challenges for cause shall be tried by the court on the oath of the person challenged, or on other evidence, and such challenge shall be made before the jury is sworn, and not otherwise."

The challenges for cause are enumerated in § 7-11-105, W.S. 1977 which states:

"(a) The following shall be good cause for challenge to any person called as a juror on any indictment:

"(i) That he was a member of the grand jury which found the indictment;

"(ii) That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused;

"(iii) In indictments for an offense, the punishment whereof is capital, that his opinions are such as to preclude him from finding the accused guilty of an offense punishable with death;

"(iv) That he is a relation within the fifth degree to the person alleged to be injured, or attempted to be injured, by the offense charged or to the person on whose complaint the prosecution was instituted, or to the defendant;

"(v) That he has served on a petit jury which was sworn in the same cause against the same defendant, and which jury either rendered a verdict which was set aside, or was discharged after hearing the evidence;

"(vi) That he has served as a juror in a civil case brought against the defendant for the same act;

"(vii) That he has been subpoenaed as a witness in the case.

"(b) The same challenges for cause shall be allowed in criminal prosecutions that are allowed to parties in civil cases." ³

The function of these procedural rules and substantive statutes is to effectuate the constitutional rights of an accused to due process of law and to be tried by an impartial jury. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court of the United States set forth the proposition that a fair trial is a fundamental requirement of due process and that a fair and impartial jury is one of the requirements for a fair trial. In that case the Supreme Court of the United States was concerned with pertinent aspects of the provisions in the Fifth and Fourteenth Amendments to the Constitution of the United States of America that no person shall be deprived of liberty without due process of law. The same right to due process is encompassed by Article 1, § 6 of the Constitution of the State of Wyoming. Furthermore, Article 1, § 10 of the Constitution of the State of Wyoming provides in part:

"In all criminal prosecutions the accused shall...