stating that the proper method to raise a challenge during voir dire is “a motion to strike or discharge the jury panel or [to] challenge the array” (citing Utterback v. State 261 Ind. 685 , 310 N.E.2d 552 (1974))
How later courts described this case
- stating that the proper method to raise a challenge during voir dire is “a motion to strike or discharge the jury panel or [to] challenge the array” (citing Utterback v. State 261 Ind. 685 , 310 N.E.2d 552 (1974))
- following denial of the mistrial, defense counsel did not ask the court to admonish jury, which is a waiver of any claim of error resulting from the failure to admonish the jury
Written by the judges who cited it.
The opinion
CHEZEM, Judge,
dissenting.
I respectfully dissent. Defendant failed to properly preserve the error. When the prosecutor read a dissenting opinion from the United States Supreme Court during voir dire, Defendant moved for a mistrial. The majority opinion correctly notes that this motion during voir dire was not the proper motion because voir dire is not part of a trial. The trial does not begin until the jury is impaneled and the cause is submitted. Niz v. State (1960), 240 Ind. 392 , 166 N.E.2d 326 . Defendant should have moved to strike, discharge the jury panel, or challenge the array. See, eg., Utterback v. State (1974), 261 Ind. 685 , 310 N.E.2d 552 , and Didio v. State (1984), Ind., 471 N.E.2d 1117, 1122 .
The majority relies upon Robinson v. State (1973), 260 Ind. 517 , 297 N.E.2d 409 to allow for the preservation of the error via Defendant's motion for mistrial at the end of the state's case in chief. However, in Robinson the alleged error was an evi-dentiary issue mentioned during voir dire but not presented at trial. Robinson is inapposite, and here, the alleged error does not rest upon the presentation of the state's evidence. Therefore, a motion for mistrial at the end of the state's case fails to preserve the error.
While it is true that the conduct of a prosecutor has sometimes been held to be so detrimental to the cause of justice that it constituted fundamental error, I do not agree that one reading of a United States Supreme Court Justice's dissenting opinion during voir dire rises to that level. The majority opinion relies on the holding in Hall v. State (1986), Ind., 497 N.E.2d 916 , in determining that defendant was placed in a "dying condition" or "grave peril" by the prosecutor's reading and that his reading affected the jury's verdict. However, I read Hall as being applicable only to repeated statements being made during voir dire regarding the elements of proof and not applicable to the reading of decisions. Furthermore, in Evans v. State (1986), Ind., 497 N.E.2d 919, 922 , our Supreme Court has indicated that the quantity of improper remarks may be as important as the content in producing a prejudicial effect. "The prejudicial effect of an isolated remark is aggravated by repeated instances of misconduct and the cumulative impact may require reversal." Id. (citing Russell v. State (1982), Ind., 438 N.E.2d 741 .) The language of Hall and Evans does not indicate that the prosecutor's one reading would rise to the level of reversible error.
Finally, I cannot agree with the majority's distinction that the reading of this Supreme Court's dissenting opinion during voir dire is more prejudicial than its reading at closing argument. Our Supreme Court stated in Hubbard v. State (1974), 262 Ind. 176 , 313 N.E.2d 346, 350 , that "it is well settled in Indiana that reading from decisions to the jury is proper." [Citations omitted.] Neither Hwbbord, nor the cases to which it cites, distinguish between closing argument and voir dire, and I do not believe that is an oversight. Likewise, a party has more opportunity to correct any prejudicial effect of an improper statement during voir dire than during closing argument. A potentially prejudiced party may question a juror about his thoughts toward a remark. Counsel may strike any prejudiced jurors. He may request an admonishment, or he may request a specific jury instruction which directs the jury to disregard the statements of counsel as evidence in a case. Here, Defendant did not question the jury panel on their impressions of the prosecutor's reading. He did not request an admonishment, nor does the record indicate that he requested any special jury instructions. I make the same inference as the Court did in Evans, supra,: counsel's failure to take curative measures indicates that the damage was not as severe as appellant now suggests.
The prosecutor's reading reflects poor judgment and form, and this dissent should not be read as giving full support for the reading of the Wade opinion. The reading of the dissenting opinion in Wade is borderline harmful, and a prosecutor should not be this eloge to the line. The Wade dissent by Justice White does not completely re *1365 flect the law, and I agree with the majority opinion that the reading had no redeeming value. However, the reading did not rise to the level of reversible or fundamental error.
For the foregoing reasons, I would affirm Defendant's conviction.