State v. Harper , 260 La. 715 ( 1972 )

McCALEB, Chief Justice.

Romaine Harper was convicted of the crime of attempted simple burglary and sentenced to serve four and one-half years at hard labor in the State Penitentiary. On this appeal he relies on two bills of exceptions to obtain a reversal of the conviction.

During the voir dire examination of Henry Price, a prospective juror, defense counsel asked him, “Mr. Price, would it in any way influence your decision in this case if you were told that the defendant has a criminal record?”, at which point the trial judge interrupted.¹ Nevertheless, the witness answered, “I don’t know.” The court then expounded on the impropriety of the question, and counsel thereafter reserved a bill of exceptions. After the State accepted the juror, he was peremptorily challenged by the defense.

In Bill of Exceptions No. 1 it is urged that the court erred in its ruling regarding the propriety of the question propounded to Price.

We find no merit in the bill. An accused’s prior convictions are not admissible during his trial unless he takes the stand in his own behalf. R.S. 15:495 permits proof of such convictions to impeach his credibility. And when he is impeached the jury is entitled to consider the fact of his conviction in determining his veracity. Consequently, as the trial judge observed, it is not proper to permit defense counsel “To ask a juror to speculate on a probability * * ” and to ask him “what his verdict would be or * * * what would influence his verdict if certain facts did or did not exist.”

In State v. Williams, 230 La. 1059, 89 So.2d 898, we specifically held that: “It is not proper for counsel to interrogate prospective jurors concerning their reaction to evidence which might be received at the trial. State v. Henry, 197 La. 999, 3 So.2d 104; State v. Morris, 222 La. 480, 62 So.2d 649; State v. Washington, 225 La. 1021, 74 So.2d 200 and State v. Peltier, 229 La. 745, 86 So.2d 693.”

Similarly, in State v. Oliver, 247 La. 729, 174 So.2d 509, where defense counsel inquired of a juror, whether the fact that a prospective defense witness had been convicted of violating the narcotics law would prevent the juror from believing her under oath, we affirmed the trial court’s ruling which excluded the question as improper, stating:

“Counsel was without right to commit a prospective juror in advance as to his evaluation of the credibility of a defense witness. The query had no relevancy to the juror’s qualification to serve in the trial of the case nor was it calculated to determine whether the juror was biased against appellant. State v. Wideman, 218 La. 859, 51 So.2d 96; State v. Morris, 222 La. 480, 62 So.2d 649; State v. Swails, 226 La. 441, 76 So.2d 523; State v. Williams, 230 La. 1059, 89 So.2d 898 (on rehearing).”

Additionally, the question here propounded was objectionable because it imports to the juror the suggestion that it might be improper for him to permit the prior criminal record of the defendant-witness to influence him in weighing the evidence and in determining the credibility of the witness. Moreover, an intelligent answer to the question would require that the juror be instructed in the law as to what extent the prior conviction should be considered, which instruction properly occurs when and if evidence of conviction is offered. In general, this Court has not approved statements of particular phases of law being expounded to jurors on their voir dire examination as a preface to interrogation. As stated in State v. Schoonover, 252 La. 311, 211 So.2d 273, “* * * this practice tends to facilitate attempts to commit the juror’s vote in advance of deliberation. Care should be exercised to prevent this result.”

Unquestionably, defense counsel has the right to interrogate prospective jurors, within reasonable limits largely within the discretion of the trial judge, to determine whether they are biased or committed to certain views not only for the purpose of discovering grounds for challenge for cause but also to enable the intelligent exercise of peremptory challenges. But the question propounded did not legitimately serve that end, for it had nothing to do with the juror’s general attitude to or against appellant. On the contrary, it sought to discover in advance what the juror’s reaction would be to impeaching evidence which may or may not be introduced.

Furthermore, appellant was not prejudiced by the court’s ruling for, as has been heretofore shown, the juror answered the question, despite the trial court’s interruption. Following his answer, defense counsel did not then challenge him for cause. Rather, with knowledge of the answer he exercised a peremptory challenge, and the juror did not serve. Besides, since appellant did not testify, there was no evidence of his prior convictions and, accordingly, his credibility as a witness was not at stake.

Bill of Exceptions No. 2 was reserved, during the voir dire examination of Lawrence Guillory, when the judge sustained the State’s objection to defense counsel’s question whether the prospective juror “would be willing to accept his [the accused’s] testimony as the truth.”

There is no error in the ruling. Answering such a question might amount to an advance commitment by the juror that he would believe the testimony of the appellant — a commitment to which the defense is not entitled.

For the reasons assigned the conviction and sentence are affirmed.

1 . The bill of exceptions shows that the court said, “No” — and that the rest of what he said was indistinct.