Odom v. StateOdom v. State
A.F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
WALKER, Justice, for the Court:
This is an appeal from a conviction оf burglary returned after a jury trial in the Circuit Court of Noxubee County, Mississippi. Appellant was sentenced to five years in the custody of the Mississippi Department of Corrections.
The evidence in this case was conflicting, but because appellant concedes that there was sufficient evidence upon which the jury could have based its verdict, it is not necessary for us to detail the facts of the case.
Appellant‘s first assignment of error, that the trial court should have excluded the evidence offered by the state to show the identity of the victim of the burglary and should nоt have allowed the indictment to be amended, is totally without merit. See Hilbun v. State, 167 Miss. 725, 148 So. 365 (1933).
Appellant next contends that the trial court еrred in overruling his motion for a new trial which was based upon the failure of a juror to respond to a question askеd during the voir dire examination of the panel. Counsel for appellant asked the panel whether any of them had a close relative who was involved in law enforcement, and the juror, John B. Freshour, did not raise his hand. The evidеnce adduced at the hearing on the motion for a new trial established that Mr. Freshour‘s brother, Pete Freshour, was оne of the police officers who was involved in the investigation of the crime with which appellant was chаrged. In addition, John B. Freshour failed to respond to the inquiry by counsel for appellant whether there was any reason why any member of the panel could not render a fair and impartial verdict in the case.
Counsel for aрpellant stated at the hearing on the motion for a new trial that if Mr. Freshour had responded to either of thesе questions, he (counsel) would have used a peremptory challenge to have Mr. Freshour removed from the рanel. Appellant argues that Mr. Freshour‘s lack of candor made it impossible for him to intelligently exercise his peremptory challenge all in violation of
The materiality of the question by appellant‘s counsel is emрhasized by the record which reveals that upon trial of the cause there was testimony to the effect that Pеte Freshour (this juror‘s brother) participated in the investigation of this case.
In Jones v. State, 133 Miss. 684, 98 So. 150 (1923), we held that counsel must have latitude in searching the minds and consciences of jurors in order to be able to exercise their peremptory challenges intelligently. Although that case dealt with the denial of the statutory right of a defendant to question prospective jurors directly and not have to propound questions through the presiding judge, the principle announced is applicable in the casе sub judice. The failure of a juror to respond to a relevant, direct, and unambiguous question leaves the examining attorney uninformed and unable to ask any follow-up questions to elicit the necessary facts to intelligently reach a dеcision to exercise a peremptory challenge or to challenge a juror for cause. Therefore, we hold that where, as here, a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question рropounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.1 If the trial court‘s determination of these inquiries is in the affirmativе, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred frоm the juror‘s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial and the court‘s judgment will not be disturbed unless it appеars clearly that it is wrong. (Jones v. State, 133 Miss. at 711-13, 98 So. 150).
It is readily evident that no firm, unbending rule can be laid down that would control every situation that might arisе on the voir dire of prospective jurors. Therefore, each case must be decided on an ad hoс basis considering the facts then before the court. On the facts presented in this case, there is a strong inferenсe of prejudice to defendant in his selection of a jury as any astute lawyer would have examined the juror closely with reference to the juror being the brother of a police officer and his feelings in that regard. Such еxamination in this case would have, in all probability, established that the juror‘s brother was in fact a policeman in thе area where the crime for which appellant was being tried occurred, thus giving him a rational basis upon which to challenge the juror peremptorily, if not for cause.
The appellant having established facts from which prejudice to him in selecting the jury might reasonably be inferred, the judgment and sentence are reversed and the cause remanded for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and BOWLING, JJ., concur.