Jahnke v. State

CARDINE, Justice,

dissenting, with whom ROSE, Justice, joins.

I dissent and join in the dissent of Justice Rose to the extent that it holds that the manner in which a battered child perceives his situation as that relates to self-defense is an appropriate subject for expert testimony and that such testimony should have been received.

In this case appellant, a sixteen-year-old boy, admitted the killing claiming only that his state of mind, resulting from a lifetime of beatings and physical and mental abuse, caused him to be in a state of fear and apprehension under which he acted in self-defense. Self-defense by a victim of abuse is as lawfully available as a defense in patricide as in any other homicide.

There is no description of the beatings and abuse in the majority opinion. For that reason and because they are necessary to an understanding of this dissent, they are set forth now. Appellant testified to specific instances of beatings and abuse that he could remember, beginning approximately when he was five or six years old. Some of the instances he recounted were: If he made noise at dinner or scraped his fork on his plate, he was hit and knocked off his chair. Once, at age five or six, he was given a rubber boat which broke when he was playing with it. His father was enraged, searching for him, threatening to beat him, and his mother hid him in a closet and protected him. He was punished almost daily. If the faucet in the washtub was found leaking, he received a beating. He was beaten in the face, arms, legs, and back with a belt for such things as walking around with his mouth open; and as Richard Jahnke testified,

“[a]nd I pleaded for him to stop. He told me, ‘Shut up, you crying baby. I’ll really give you something to cry about.’ And he hit me harder.”

When he was young, he had asthma and necessarily coughed frequently. His father would hit him for coughing and he would hold back the cough as long as he could. When his father felt his teeth were not white enough, he took a toothbrush, told him he would show him how to brush, and brushed his teeth until his gums bled. He and his sister were both subjected to the teeth brushing; and when his sister was maturing and her face broke out, she was scrubbed with a rough rag until her face would bleed. Richard Jahnke was mentally tortured and humiliated by being called names such as leather lips, sissy, being told he was “no good,” “worthless,” and cursed frequently.

*1045 One of appellant’s weekly chores was to clean and mop the basement. He testified that his father would make a mess in the basement deliberately so that he would have to clean it. On Sunday, May 2, 1982, his father yelled at him, slapped him, dragged him by the hair and pushed him down the basement stairs with orders to begin cleaning. His father then came to the basement, began beating on him, hitting him with his fists, shouting at him, and finally telling him to get out of the house; to leave. Richard grabbed his shoes, began running from the house barefoot. His father stood in the way, as he often did, so he could hit him a couple more times as he left. Richard ran barefoot to a neighbor’s house, but was too embarrassed, confused, and humiliated to even knock on his neighbor’s door. He sat on a curb in front of his neighbor’s house crying for approximately three hours. The neighbor then came out of his house, noted Richard had been crying, asked what was wrong, and was told the entire story. He observed bruises and marks on Richard’s back and arms from the beating, took him to the sheriff’s office where reports were made out. Richard’s family was called and they all came to the sheriffs office where they were put in a room together to discuss what had happened. He then went back home with his family. Shortly thereafter, a social worker called at the house. He talked to the family as a group, but not with Richard separately as was standard procedure in the agency. When Richard was asked about what had happened, his father was always present glaring at him; and he finally said everything was alright. The social worker, as he left the house, walked out on the front lawn with the father and talked to him privately for about ten minutes. When the father came back into the house, he was smiling as though he had won; and Richard felt he had failed and there was nothing he could do.

Things were better for a short time and then the abuse and the beatings started again. On the Saturday before this incident, the father, Richard Chester Jahnke, beat his daughter Deborah for not combing her hair. Then, on November 16, 1983, there was the family argument described in the majority opinion. Richard Jahnke was beaten again, threatened, and told not to be in the house when the father returned from dinner. When his father returned home, an hour and a half later, his homicide resulted.

The court was advised, prior to commencement of trial, that appellant contended he acted in self-defense in killing his father and wished upon voir dire,

“ * * * to ask the panel whether or not there are any individuals seated on the panel who feel that there’s no justification ever for the taking of a human life.”

In chambers, before commencement of the trial, the following transpired between the court and counsel:

“[THE COURT:] ⅜ * ⅝ [A]nd the court has instructed counsel that it is the court’s opinion that during the selection of the jury that defense of self-defense or any other defense need not be mentioned * *

Appellant’s counsel then advised the court of another area he wished to explore on voir dire and stated,

“There is an area in this case with regard not only to physical abuse but mental abuse, and I would like to have the latitude to inquire of the jury * * 1 . We do have an element of mental abuse where it is our evidence and our assertion that the children are — very young age — put down, if you will, sworn at, cussed at. “And I need to know and would like to be able to inquire as to whether or not people on that panel feel * * * that sort of conduct or treatment is beneficial or harmful.

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“There is an impact from conduct other than physical abuse, and I would like to be able to inquire into that area of the panel.

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*1046 “THE COURT: Well, I would not allow you to inquire because I think that opens up everything that the court wants to exclude during the voir dire.

“I will allow you to ask them individually how they discipline their children or how they did discipline their children. * * * ”

The court then advised counsel as follows:

“Gentlemen, I’m going to instruct the jury that the purpose of voir dire examination is not to make an advance, favorable portrayal of the case of one side or the other, but rather to insure the parties of a trial by an impartial jury, that is, by qualified jurors who have no bias or prejudice * * V’

Appellant’s counsel responded as follows:

“Well, Your Honor, it would be, with all due respect, it would be our contention that there’s no way to determine whether they have that bias or prejudice unless we can question specifically in these areas.

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“For the record, I understand the ruling of the court. For the record, I would like to enter an objection to that restriction because I feel it impairs and interferes with our ability to determine that in this particular case where there is a considerable amount of underlying emotional impact, even to the people who have to consider whether they can fairly and impartially judge this case, and it takes some soul-searching on their part.

“I believe the only way I can effectively do that is to specifically inquire.

“But I understand the court’s ruling. I do disagree, but would like to enter an objection at this time.

“THE COURT: It’s on the record.”

The court began the proceeding by instructing the jury upon the purpose and method of conducting voir dire. At this time, a motion in limine seeking to restrict voir dire had been filed by the State and not ruled upon by the court. The filing of the motion and failure to rule is of no effect, for surely voir dire is not controlled by the State through unruled-upon motions in limine. The court asked the jury if they would follow the law as given by the court, informed them that the State carried the burden of proving the defendant guilty, and that they should assume the defendant innocent unless convinced of his guilt beyond a reasonable doubt. These were nonspecific, general questions and statements propounded to the jury panel as a group. For the most part, they were instructions to the jury, not calculated to develop information at all. The questions that were asked were innocuous and of a kind that result in the same one-syllable answer from each juror. For example, if a juror is asked if he will follow the law, without knowing any specifics, he will say “yes.” But his answer might be different if the juror felt the taking of human life could never be justified. Perhaps he could not follow the law relative to self-defense.

The court next asked each juror to state their name and furnish certain basic information concerning employment, marital status, ages of children and background information. Voir dire was then turned over to the respective attorneys.

The prosecuting attorney’s voir dire covered one hundred pages of the transcript of testimony. The voir dire of defense counsel, because of the extreme limitations placed upon him, was reported in just sixteen pages of transcript. Appellant’s counsel was permitted to ask on voir dire just one question of the jury, i.e., how they disciplined their children. When jurors responded they spanked them, the voir dire was finished. Counsel was not permitted to make inquiry concerning juror’s feelings about self-defense, whether there would ever be a justification for killing another human being in the mind of a juror, their feelings about mental and physical abuse, and how that might affect one’s state of mind or reasonable apprehension of fear, and whether any of the jurors might have a bias or prejudice in any of these areas that would prevent appellant receiving a fair trial or the juror being able to judge impartially.

*1047 The right of a defendant in a criminal case to a jury free of bias and prejudice is guaranteed by Art. 1, § 10, Wyoming Constitution which provides:

“In all criminal prosecutions the accused shall have the right * * * toa* ⅜ * trial by an impartial jury ⅝ ⅝

The same right is guaranteed to the defendant by the Sixth Amendment to the Constitution of the United States. This court has accepted as a fundamental principle the proposition that parties to an action are entitled to a fair and impartial jury. Lopez v. State, Wyo., 544 P.2d 855 (1976). To accomplish that purpose, it is essential that a litigant be permitted to develop all relevant and material matters which might form a basis, not only for a challenge for cause but also such as would permit him to intelligently challenge peremptorily. State v. Brown, Mo., 547 S.W.2d 797 (1977); 47 Am.Jur.2d Juries § 195.

In addition to challenges for cause provided by statute, appellant was entitled to exercise eight peremptory challenges pursuant to Rule 25(b), W.R.Cr.PJ It is recognized that bias and partiality may exist that do not meet the statutory requirements of a challenge for cause. The peremptory challenge then covers an area that is not encompassed by the challenge for cause, is exercised for reasons known only to counsel and his client, and is not under control of the court.

Common sense tells us that peremptory challenges were intended to provide an additional safeguard to the required fair trial. They cannot be exercised in a vacuum or by guess and conjecture and accomplish this purpose. The litigants, therefore, should have as full knowledge as possible of prospective jurors to permit an intelligent decision in the selection process.

Therefore, I am convinced that the better rule is stated as,

“* * * The purpose of voir dire is to assure that the defendant’s right to a jury free of interest, bias or prejudice is protected * * * [and] [v]oir dire works to protect that right not only by providing the basis for challenges for cause but also by providing a basis to ‘enable a litigant and his counsel to exercise reasonable judgment in utilizing peremptory challenges.’ * * ‡ ” State v. Peacher, W.Va., 280 S.E.2d 559 (1981).

A litigant at the voir dire stage of the proceeding has the burden of demonstrating bias or prejudice or establishing the grounds for the exercise of his challenges. Thus, in Lopez v. State, supra, we said:

“ * * * It is the obligation of the defendant to examine jurors on voir dire and discover by proper investigation facts affecting their qualifications, and then to seasonably raise that objection with respect to any member of the panel. * * ” 544 P.2d at 861 .

In Lopez v. State, supra, unlike the case at bar, defendant had the opportunity to voir dire the panel with respect to significant issues of the case but failed to do so. Similarly, in Keffer v. State, 12 Wyo. 49 , 73 P. 556 (1903), defendant chose to withhold the character of his defense on voir dire and we held:

« ⅛ ⅜ * aceuse¿[ was un(jer no obligation to disclose the character of his defense at this stage of the proceedings [voir dire examination]; but, if he chose to hold it in reserve, he cannot complain that the examination did not * * * disclose whether any [of the jury] had formed any opinion in regard to it. * * ” 12 Wyo. at 65 , 73 P. at 559 .

This case presents the same issue but from a different perspective. Defendant here did not choose to withhold his defense and in fact requested of the court on several occasions an opportunity to voir dire the jury concerning specific matters of his defense. The court, although fully informed as to appellant’s defense, limited the scope of voir dire to such an extent that it was *1048 meaningless. This was an abuse of discretion for,

“ * * * [w]here a trial court’s restriction of the scope of voir dire undermines the rights sought to be protected by the voir dire process it will be held to be an abuse of discretion and reversible error.” State v. Peacher, supra, 280 S.E.2d at 570 .

Neither do I agree with the majority in holding that the sterile, broad, general questions directed to the jury by the court inquiring whether they could “follow the law” cured this error. Again in State v. Brown, supra, it was stated:

“ * * * [The] general question did not cover defendant’s proposed inquiry about the critical issue of the state’s burden to disprove self-defense.

“ * * * [I]t is clear defense counsel made known to the trial court he wanted to learn if the veniremen’s minds were open or closed to the principle that the burden of proof would be on the state to disprove self-defense. This was vital to the defendant’s right to have an unbiased jury. The trial court erred in barring defendant from exercising this right.” 547 S.W.2d at 800 .

Voir dire is probably the least understood and most poorly developed of all the trial skills. Judges often feel that it is misused and wasteful of time; that counsel attempt upon voir dire to establish a rapport with the jury, argue their case, and condition or prepare the jury for damaging evidence and difficult concepts. Perhaps some of this cannot be avoided even in a proper voir dire examination, and it surely occurs anyway during the course of the trial. In any event, we know that voir dire has an honest and legitimate purpose that no fair-minded person would dispute. It should be the desire on the part of all those involved that the jury selected should be one with as little bias, prejudice, or preconceived notions or opinions about the principles and concepts involved in the particular case as is humanly possible.

It has been suggested that counsel improperly attempt to select jurors favorable to their cause. That cannot happen for jurors are drawn at random and then excused peremptorily or for cause if not qualified. With experienced, competent trial counsel the prosecution surely will challenge and strike those jurors favorable to the prosecution. The jurors left who will hear and try the case should be those with the least bias, prejudice or opinions about the facts of the case and what the result ought to be. But this system can only work if counsel, though questioning of the jurors on voir dire, is able to gain sufficient knowledge that challenges can be exercised intelligently. That requires some latitude in permitting an effective and reasonable voir dire structured to develop the attitudes, opinions and feelings of the panel of jurors from whom the trial jury will be selected.

Some of the questions appellant’s counsel wished to propound to the jury were proper. Some were improper and the court properly sustained objections to them. For instance, appellant’s counsel advised the court that he wished to inquire of the jury if they felt it proper for a father to lay on top of his daughter, feel her breasts, and put his hands into her panties. What was the purpose of the question? If it were allowed, what would the response be? Surely every juror, no matter what his personal feelings, would have answered that question in just one way — with a “No.” If counsel already knew what the answer of each juror must be to that question, why did he wish to ask it? It reveals nothing about bias or prejudice. Clearly it was intended to incense the jury, was argumentative, and sought a commitment from them beforehand. It was an improper question. When a question directed to the jury is one that must be answered by all of the jurors in the same way, it usually is not a question that will develop any information helpful in ascertaining whether bias, prejudice or preconceived notions about the case may exist with those jurors. The question is generally one that seeks a commitment from the juror or is in the nature *1049 of argument and is, therefore, objectionable.

On the other hand, when appellant sought to ask jurors whether any of them felt there is no justification under any circumstance ever for the taking of human life, it was proper. This was a question that jurors might answer differently because of religious or personal beliefs or feelings they might have about taking the life of another. There are those who might feel there is never any justification under any circumstance for the taking of human life. Appellant was equally entitled to know how jurors felt about physical and mental abuse and the effect that might have on a child from the age of five until he reached sixteen years of age. Appellant claimed he acted in self-defense. His state of mind and his apprehension of fear under all of the circumstances was an important element of his defense; and how jurors might feel about that defense or whether they could accept it or even consider it was vital in jury selection. If there were those on this jury, who because of personal feelings, religious belief, upbringing or training could not accept or consider self-defense as a justification for this homicide, then appellant did not receive a fair trial.

The trial court instructed the jury on the law of self-defense. This then became the law of the case. The jury could have found under the instructions of the court that appellant reasonably believed he was defending himself when the killing occurred. We can never know if there were those on appellant’s jury who held beliefs that would not permit them to make this finding or accept this defense.

The appellant asserts that the trial court’s action in limiting the scope of inquiry on voir dire made it impossible to effectively and adequately exercise his peremptory challenges thereby violating his right to due process of law and effective assistance of counsel. I find merit in appellant’s argument. It was an abuse of discretion for the trial court to deny appellant the opportunity to voir dire prospective jurors as' I have outlined. I would, therefore, reverse and remand for a new trial.

. Rule 25(b), W.R.Cr.P., provides in part:

"(b) Peremptory challenges. — In every case * * * [i]f the offense charged is punishable by imprisonment for more than one (1) year, each defendant shall be entitled to 8 peremptory challenges. * * * "