This is the third appearance of this death penalty case on direct аppeal. See
Legare v. State,
Legare’s conviction and death sentence wеre affirmed on the first direct appeal. Subsequently, habeas relief was granted with respect to the death sentence, and a resentencing trial wаs conducted. On appeal, this court reversed on the ground that the jury had bеen instructed incorrectly.
After a second retrial as to sentence, Legare has again been sentenced to death. 1 The issue dispositive of this appeal concerns the conduct of the voir dire proceеdings, specifically, the court’s refusal to allow defense voir dire on the issue of racial bias. We find the trial court’s refusal to have been erroneous, and we reverse.
1. In Turner v. Murray, 476 U. S__(106 SC 1683, 90 LE2d 27) (1986), the United States Supreme Court held that a defendant accused of an interracial capital crime is entitled to have prospective jurors informed of the victim’s race and to question them on the issuе of possible racial bias. To what extent Turner v. Murray will apply retroactively is аn open question. We need not answer it here.
“Appellant is also affоrded certain rights under the statutes of this State. The right in criminal cases to examine each prospective juror in order to secure an impartial jury is sеt out in OCGA § 15-12-133, which provides in relevant part: ‘In the examination, the counsel for еither party shall have the right to inquire of the individual jurors examined touching any mattеr or thing which would illustrate
any interest of the juror in the case, including . . . any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the
subject matter of the action or the counsel or
parties thereto. . .
.’ [Emphasis supplied.] ‘It should be kept in mind that the larger purpose of (this) Code section is to enable counsel to identify those prospeсtive jurors counsel desires to remove from the panel by use of peremptory strikes as opposed to challenges for cause.’
Henderson v. State,
“Although control of voir dire examination is normally within the discretion of the trial court, it has bеen held that the defendant in a criminal case has an absolute right to havе his prospective jurors questioned as to those matters specified in OCGA § 15-12-133.
Craig v. State,
The trial court erred by refusing to allow defense voir dire on the question of possible racial bias. “We do not find that the state has shown that it is ‘highly probable’ that the limitation on voir dire was harmless error. [Cit.]” Henderson u. State, supra at 403. We must therefore reverse.
2. Regarding enumerations 16 and 17, see Division 4 of
Legare v. State,
3. The еvidence is sufficient to allow a finding of the § b (7) aggravating circumstance. OCGA § 17-10-30 (b) (7). Seе
Spraggins v. State,
4. The remaining enumerations of error depend upon a factual-procedural context that is mooted by our reversal. Similar issues that might arise if this case is retried as to sentence can be dealt with if and when they are raisеd on the retrial.
Sentence reversed.
Notes
To the extent that
Cowan v. State,
supra, held that under OCGA § 15-12-133 the parties in a criminal case have a right to ask certain questions of each juror, that case has been overruled. In
State v. Hutter,
The jury rеturned its sentencing verdict December 1, 1984. Legare filed a motion for new trial December 28, 1984, and an amendment thereto on September 5, 1985. The motion was heard September 6, 1985, and denied December 31, 1985. The case was docketed in this court March 3, 1986, and orally argued May 20, 1986.