Fuson v. State , 105 N.M. 632 ( 1987 )

RANSOM, Justice,

dissenting.

I DISSENT. If I had been the trial judge, I likely would have excused the juror. But, Judge Fort was the trial judge, not I. The trial court has “a great deal of discretion,” State v. Martinez, 95 N.M. 445, 450, 623 P.2d 565, 570 (1981), in determining whether a prospective juror is “totally free from any partiality whatsoever.” State v. McFall, 67 N.M. 260, 263, 354 P.2d 547, 548-49 (1960). Arbitrary and unreasonable action on the part of the court is the test for abuse of discretion. Richins v. Mayfield, 85 N.M. 578, 514 P.2d 854 (1973). For the court to have abused its discretion, there must have been no reason to believe that the prospective juror was totally free from any partiality whatsoever.

Therefore, the majority seems to hold that, when a juror states that he cannot say with certainty that he could be totally impartial, and that there is a possibility that his knowledge of “about half” of the witnesses would affect the way he decides the case, then there is no reason for the court to believe that the prospective juror is totally free from any partiality whatsoever. I do not want to dilute a “great deal of discretion" by holding that “lack of certainty” and “possibilities” skillfully elicited in voir dire shall require that the court dismiss prospective jurors on challenge for cause, or face the likely prospect of a new trial after appeal. What honest man can be “certain”? Is not partiality always a “possibility”? Should not the trial judge take the measure of the man?

It is for the trial court to determine whether a prospective juror’s statements regarding lack of certainty and possibilities are cause to excuse the juror. The manner and circumstances in which the words are expressed are as important as their literal meaning.

For the above reasons, I dissent.