State v. Brown

HENLEY, Judge,

dissenting.

I respectfully dissent. I do so because I do not believe it may be said from this record that the court abused its discretion in refusing to permit defense counsel to inquire of the prospective jurors whether they could follow the law with respect to the burden of proof on the two defenses of accident and self-defense.

*806 Immediately after defense counsel began his voir dire examination of the panel, the trial judge called counsel to the bench for discussion, outside the hearing of the jury, of a question raised by a statement of defense counsel to which the State had objected. During this bench conference the following also occurred:

“MR. ADAMS [counsel for defendant]: As long as we are here on this question, I also anticipate asking the jury the question along these lines: That the Court is the expert on the law in this room, that I do not mean to instruct the jury on the law because the Judge will do that at the end of the case. I intend to ask the jury — to indicate to the jury that I anticipate that the Court may instruct the jury on the question of self-defense and that the Court may instruct the jury on the question of accident. Now with that in mind, I would ask the jury whether they could follow the law with respect to the burden of proof on those two questions.

MR. FRIEDMAN [counsel for State]: Again, Your Honor, this is beyond the scope of voir dire examination. I object to any question — the question is can you follow the law and that’s the general one I asked. Everyone said he could follow the questions and the law.

THE COURT: Sustained as to the last question.

MR. ADAMS: Then the Court, I gather, would not allow me to inquire of the jury as to whether they could — whether they understand the burden of proof with respect to accident? It is on the State to prove beyond a reasonable doubt that it was not accident and second, with respect to the question of self-defense, and the burden of proof is on the State to prove beyond a reasonable doubt that it was not self-defense? I don’t want to go into the details of the case, but I think I have a right to ask the jury as to whether they would require the defense to prove self-defense or require the defense to prove accident. That’s my only purpose in—

MR. FRIEDMAN: I don’t know — it is not mutually exclusive. I don’t know if accident and self-defense are not mutually exclusive defenses. I don’t know what the defense is going to be, but I think the general question is whether or not the jury will follow the Court’s instructions; the Court will instruct at the end of the case; that the State has the burden of proof beyond a reasonable doubt; proving all the offenses (sic) of the crime — of any crime they might find the defendant guilty of, and I think again the general questions are fine. I think any speculation at this point, when no evidence is before the jury as to self-defense or accident or what have you, I think is purely speculative and I think it is improper to go into at this point of the trial.

THE COURT: Sustained.

* * ⅜ * * *

The rule is that the conduct and scope of the voir dire examination of prospective jurors is left largely to the trial court’s sound discretion and will not be interfered with on appeal unless a clear and obvious abuse thereof appears. State v. Hawkins, 362 Mo. 152 , 240 S.W.2d 688, 693-694 [8] (1951); State v. McKeever, 339 Mo. 1066 , 101 S.W.2d 22, 27 [7] (1936). And, questions propounded by counsel pertaining to the plea of self-defense or accident should be complete, and carefully and correctly framed. State v. Lassieur, 242 S.W. 900 , 902[2] (Mo.1922).

It is not the prerogative of counsel on voir dire to explain the law or state what the instructions of the court will be. State v. Smith, 422 S.W.2d 50, 67-68 [29, 31] (Mo. banc 1967); State v. Bolle, 201 S.W.2d 158 , 159-160[2, 3] (Mo.1947). It is for the court to instruct the jury in writing upon all the law applicable to the case and it is the jury’s duty to follow the law as the court gives it. An attempt by counsel, before the evidence is in, to inform the jury which instructions on the law the court will give, and especially to state orally what those instructions will say the law is, or to explain what it is if there is any indication a member of the panel does not understand the oral statement, is fraught with danger of injecting prejudice and must be tightly con *807 trolled by the trial judge. It is not until all the evidence is in that the trial judge knows with certainty which instructions will be given and even then what he says the law is must be in writing.

Here, counsel did not frame and present a specific question or questions for the court to rule upon; all he did was inform the court in general terms of the broad area about which he sought to inquire and, if necessary in his opinion, to inform and explain. His questioning members of the panel whether they could follow the law on the burden of proof of a defense would not be unlike inquiring whether they have any personal feelings for or against the rule which requires the State to bear the burden of proof throughout the case (State v. Smith, supra) or whether they believe the law on this subject is good or bad (State v. Mosier, 102 S.W.2d 620 , 624[9] (Mo.1937)). In State v. Mosier, supra, the court said: “Their opinions on the merits of the law were immaterial unless so unyielding as to preclude them from following the law under the court’s instructions. That should have been the question asked.”

Moreover, counsel was seeking in this case to inquire relative to inconsistent defenses (State v. Peal, 463 S.W.2d 840 (Mo.1971) and cases therein cited) and, while instructions on both these defenses may be given in some circumstances, defense counsel did not at any time inform the court what the proof would be that would require the giving of instructions on both. If the evidence would not permit the giving of both instructions, it would have been improper to permit counsel to inquire as broadly as he sought, because as to at least one of these defenses his inquiry would have injected a false issue. The least counsel could have done at the time was inform the court what the evidence would be that, in his opinion, would require the giving of instructions on both defenses, thus permitting the court to make an informed ruling as to counsel’s inquiry on each. Instead, counsel kept mum; thus, in effect, attempting to sandbag the court.

I would hold that the court did not abuse its discretion in its rulings on the voir dire examination sought by defendant.