Smith v. State ( 1982 )

BRETT, Presiding Judge,

dissenting:

This Court has held that if counsel does not ascertain during voir dire the competency of jurors, any error in empaneling the juror is waived. In the instant case, the questionable competency of this juror was ascertained and brought to the attention of the trial court during voir dire. In Carr v. State, 65 Okl.Cr. 201, 84 P.2d 42 (1938), this Court held:

Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. And it is the duty of courts to see that the Constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising his objection.

It has long been the law of this State that the Court may disqualify jurors on its own motion. Colliers v. State, 47 Okl.Cr. 339, 288 P. 388 (1930); Brewer v. State, 44 Okl.Cr. 361, 280 P. 473 (1929); Kerr v. State, 276 P.2d 284 (Okl.Cr.1954). When it becomes evident that defense counsel was not going to question this juror about the prior jury service or challenge the juror for cause, the trial judge should have acted sua sponte to determine the competency of the juror. Jurors with such prior jury service have repeatedly been held not to qualify as impartial. Odell v. State, 89 Okl.Cr. 184, 206 P.2d 229 (1949); Jean v. State, 49 Okl.Cr. 409, 295 P. 233 (1931); Weber v. State, 44 Okl.Cr. 450, 281 P. 987 (1929); Schrimpsher v. State, 32 Okl.Cr. 371, 241 P. 201 (1925); Temple v. State, 15 Okl.Cr. 176, 175 P. 733 (1918).

However, as this juror was unfortunately empaneled to try this case, I cannot be sure that this appellant’s right to have an unbiased and impartial finding on the evidence was fulfilled. This juror brought to the jury room knowledge about the appellant’s prior conviction on a similar charge. This knowledge otherwise would not have been available to any juror in the instant case until the sentencing stage of trial. As a general rule, one is to be convicted, if at all, only by evidence of the offense charged. Burks v. State, 594 P.2d 771 (Okl.Cr.1979). The impartiality of this jury, however, was jeopardized by the presence of the infected juror.

Accordingly, I would grant the appellant a new trial.