State v. Fisher

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
APRIL 1997 SESSION
FILED
July 8, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
C.C.A. No. 03C01-9610-CR-00370
Appellate C ourt Clerk
)
Appellee, ) HAMBLEN COUNTY
)
VS. ) HON. BEN K. WEXLER, JUDGE
)
CHRISTIAN KING FISHER, ) (DUI, Speeding)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
JIM W. STAMBAUGH JOHN KNOX WALKUP
P. O. Box 1003 Attorney General and Reporter
Morristown, TN 37816-1003
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. BERKELEY BELL
District Attorney General
VICTOR VAUGHN
Assistant District Attorney General
510 Allison Street
Morristown, TN 37814
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Christian King Fisher, was convicted by a Hamblen County jury of
driving under the influence of an intoxicant and speeding. The sole issue in this appeal
is whether the trial court denied the defendant his right to an impartial jury by failing to
excuse certain jurors for cause. We AFFIRM the judgment of the trial court.
I.
During voir dire defense counsel asked the following hypothetical to the jury
panel:
“In other words, let’s say the Tennessee law says
there’s supposed to be one zero [.10%], and somebody
has a point zero three [.03%], ... would you feel like that
person is guilty of DUI?”
Two (2) jurors indicated in the affirmative and were challenged for cause. The trial
judge then explained to the jury in detail that to be convicted it must be shown that a
defendant was driving under the influence, not the fact that he had a certain amount
of alcohol. All jurors indicated they could follow the law. The trial judge did not grant
the challenge for cause.
Defense counsel subsequently asked the panel the following:
“Still, assume for the purpose of this question, and this
is an assumption, that someone had a point zero three
[.03%] reading, and the state of Tennessee law says it
takes a point one zero [.10%] to be under the influence,
how many of you would convict a defendant that had
a point zero three [.03%] reading?”
Five (5) jurors indicated in the affirmative. The trial court then noted the jurors might
not understand what .10% and .03% means. After a further explanation from the
court, the jurors indicated they could follow the law.
Defense counsel challenged for cause the jurors who had indicated in response
to counsel’s questions that they would convict based upon a .03% reading. After these
challenges for cause were denied, defense counsel exercised all three (3) peremptory
challenges allowed in a misdemeanor case. Defendant contends that because of the
trial court’s refusal to excuse two (2) named jurors for cause, he was forced to exercise
his peremptory challenges as to those jurors. He, therefore, argues he was forced to
2
accept two (2) other jurors that he would have otherwise peremptorily challenged.
II.
We first note that the questions were confusing to a jury who, at that time in voir
dire, had been given no explanation about the inferences that could be drawn from
blood alcohol readings.1 Furthermore, defense counsel misstated the law by telling the
jury “it takes a point one zero [.10%] to be under the influence...” A defendant can be
guilty of driving under the influence even without a blood alcohol test indicating a .10%
or greater. Tenn. Code Ann. § 55-10-401; State v. Gilbert, 751 S.W.2d 454 (Tenn.
Crim. App. 1988). The trial court has wide discretion in ruling on the qualifications of
a juror. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). The trial court
did not abuse its discretion in refusing to excuse the jurors for cause.
Irrespective of whether the trial judge should have excluded the challenged
jurors for cause, any possible error is harmless unless the jury who actually heard the
case was not fair and impartial. State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993);
State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). The failure to correctly
excuse a juror for cause is grounds for reversal only if the defendant exhausts all of
his peremptory challenges and an incompetent juror is forced upon him. Ross v.
Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988); State v.
Jones, 789 S.W.2d 545, 549 (Tenn. 1990). Although defendant exercised all of his
peremptory challenges, he has not shown that an incompetent juror was forced upon
him.
The judgment of the trial court is AFFIRMED.
1
In fact, the defendant did not have a .03% reading but rather had a .13% reading.
3
JOE G. RILEY, JUDGE
CONCUR:
JERRY L. SMITH, JUDGE
CHRIS CRAFT, SPECIAL JUDGE
4