DocketNumber： A90A0567
Judges： Beasley, Deen
Filed Date： 5/30/1990
Status： Precedential
Modified Date： 11/8/2024
This case involves the scope of voir dire.
1. Defendant, a black man, was charged with rape (OCGA § 16-6-1), aggravated assault (OCGA § 16-5-21), terroristic threats and acts (OCGA § 16-11-37), and burglary (OCGA § 16-7-1) at the home and upon the person of a white widow who was age 75 at trial, eleven months after the event. The first trial ended in mistrial. At the beginning of the second trial, the State moved in limine “to prevent defense counsel from making racial remarks in either the jury selection process or during the trial.” After the State explained its motion, opposing counsel responded that defendant had a right to individual examination in such manner as might unearth, illustrate, or indicate any racial inclination, leaning, prejudice, or bias which a prospective juror might have. He cited OCGA § 15-12-133, cases applying it, and, with respect to Federal Constitutional rights, several United States Supreme Court cases.
In reply to the court’s inquiry, counsel posed the question he wanted to ask: “The accused is a black man, the alleged victim in this case is a white female. With that on your mind is there any one that would have any prejudice, bias or leaning against the defendant simply because he is black?”
The State suggested that the general statutory questions put by the court would adequately cover the matter if race were included in the question as to bias. The court agreed to ask the general question with the addition of calling attention to the fact that “there is black involved and there is white involved” but ruled that defendant’s counsel could not ask whether a prospective juror was prejudiced because defendant is black and the victim is white.
After much discussion, the court indicated that it would include the race reference in the general question regarding bias and that, based on Legare v. State, 256 Ga. 302 (348 SE2d 881) (1986), it would restrict defendant’s race bias related questions to whether any juror
The statutory question was not enlarged to specifically mention race.
When defendant’s counsel questioned the panel, he abided by the court’s rulings. He asked the question concerning white police officer versus black defendant credibility. The only other question touching on race was whether any prospective juror was a member of the Ku Klux Klan, Black Panthers or Neo-Nazis. There were no responses to either question.
On appeal, defendant contends that the court interfered in limiting the latitude of his voir dire on the issue of racial bias. Applying the Supreme Court’s interpretation of the breadth of the right contained in OCGA § 15-12-133, as summarized in the Legare case, supra, he is correct. The right which the statute gives has wider girth than the trial court allowed defendant to exercise. The manner by which he deemed he could best uncover racial bias is not outside the broad boundaries. While we cannot say that the direct frontal question as formulated by defendant would have been effective for the purpose, neither can we say that his technique would have failed.
The question he was permitted to ask addressed possible prejudice as to witness credibility; it did not address “any inclination, leaning, or bias” which a juror might have because of the fact and circumstance that the defendant was a black male and the victim an elderly white widow. Neither would the non-specific statutory question likely evoke an admission in so sensitive a realm of attitude.
As in Legare, we cannot conclude that the limitation was harmless error.
There being a reversible statutory violation, we do not address the matter of constitutional rights. See Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986).
2. No argument was presented with respect to the second enumerated error regarding jury charge, so it is considered abandoned. Rule 15 (c) (2).
Judgment reversed.