
    STATE of Louisiana v. Athenis CHAPMAN.
    No. 54287.
    Supreme Court of Louisiana.
    June 10, 1974.
    Rehearing Denied Aug. 30, 1974.
    
      Donald J. Tate, Tate & Tate, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pucheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted after a trial by jury of the murder of Harris Fontenot and was sentenced to life imprisonment. Fifteen bills of exceptions are presented for our consideration upon this appeal.

The killing which was the basis of the instant prosecution took place outside a bar and lounge near Ville Platte, in Evangeline Parish, during the early morning hours of March 19, 1972. Approximately twenty or thirty minutes before the shooting occurred the defendant and the decedent had engaged in a heated argument inside the lounge. The owner of the lounge intervened and ordered the defendant to leave the lounge. The decedent was subsequently calmed, had another drink and conversed with the lounge owner and some of the other patrons. Thereafter, having announced his intention to go home and go to sleep, the decedent exited the lounge. He was immediately shot twice. Only the defendant and the decedent were present when the shooting occurred; no one else witnessed the shooting. Death was the result of the two bullet wounds.

Bills of Exceptions Nos. 1, 2 and 3 were reserved with respect to instructions and voir dire examination of the prospective jurors by the trial judge.

The per curiam of the trial judge details the procedure followed:

“ . . . This procedure is as follows. The roll is called and a record is made of the names of all prospective jurors present in the courtroom. Those present are then brought into the ‘inclosure’ of the bench and counsel’s tables. After the prospective jurors are sworn the court inquires into their general qualifications, simply following the statute thereon. Those whose responses show a problem on general qualifications are questioned further by the court and then counsel are allowed to question them further on the question raised if they wish to do so. Those prospective jurors who clearly do not meet the general qualifications are promptly released, with the reason therefor stated by the court. If there is any problem on general qualifications of some jurors which can not be readily resolved the court requires that they remain as prospective jurors, and counsel, as well as the court, make a notation of the ‘poll number’ and name of the juror so that the necessary information on qualifications may be developed during voir dire when the juror is called on the regular voir dire panel.
“After release of those clearly disqualified on general qualifications the court explains to the prospective jurors remaining that it will read certain ‘pre-in-structions’ to them and instructs them that they must listen carefully to the reading. They are also told that if they can not hear me well during the reading they must raise their hands. The court then asks each prospective juror to raise his right hand if he can hear and understand the court’s instructions so far. Once this is understood the court proceeds to read the prepared pre-instruc-tions. The court observes the prospective jurors during the reading to assure that they are attentive and, periodically, the court specifically inquires whether the reading is being properly heard and understood. Counsel also have the opportunity to observe the attentiveness of the prospective jurors during the reading.
“When the reading is completed the court asks the following questions and each prospective juror is required to respond to the questions under his oath. The questions are:
‘T) Did each of you hear what the court read to you?
“2) Did each of you understand what the court read to you ?
“3) Are you willing to accept and apply the law as given to you by the court?
“(The court also explains that those who are chosen to serve on the jury will have all of the applicable law read to them after they have heard the evidence and the closing arguments of counsel).
“These questions are asked of the prospective jurors as a group and they are instructed to respond by raising their right hand — that is, all of them must respond as each question is asked. If inquiries or doubts arise on these questions and responses, they are taken up individually with the one or ones involved. The answers to all questions, whether to a positive or negative question, are carefully checked. The jurors are then polled individually by name and each must respond orally to the inquiries, while they are still under oath. This is simply a ‘double check.’ Again, if there is any indication of a problem or doubt of any kind the name and poll number of that particular juror is noted by the court and by counsel for such further inquiry as might be deemed appropriate when the prospective juror is called on a panel for voir dire examination by counsel.
“Counsel were made aware of the court’s rule that it would not ordinarily permit mere repetition of the rules or points of law read by the court to the prospective jurors in order, simply, to inquire again as to whether the prospective juror can and will accept and apply the rules or points of law. Counsel were also made aware that upon a request to probe any particular prospective juror or jurors on any point of law included in the pre-in-structions although simply to determine whether the juror could and would apply the law, the court would grant the request if a good reason therefor was stated. And this would be allowed despite the sworn declaration of each juror that he could and would do so when questioned by the court.
“There was no restriction whatever, of course, on interrogation of prospective jurors on matters not included in the court’s ‘pre-instruction’ and questions to the prospective jurors thereon, excepting the established rules of voir dire examination. The restrictions on matters covered in the ‘pre-instructions’ and questions by the court thereon applied to counsel for the state as well as to counsel for defendant. As stated, the primary reason for using this procedure is to minimize confusion of the jurors on the points of law they must apply. When prospective jurors (and jurors already accepted, sworn, and seated) are subjected to statements of lawyers on points of law, particularly statements that vary in language and emphasis when stated, in turn, by prosecution counsel as well as defendant counsel, considerable confusion of the jurors can hardly be avoided. This is so even if the various interpolations of points of law are basically correct. The confusion is worse, of course, when the jurors are subjected to incomplete, misleading, or incorrect ‘points’ of law which are emphasized, in turn, by the prosecution and by the defense. The supposed protection through objections by opposing counsel, arguments on the law, and rulings by the court on the almost limitless shades of meaning and emphasis which the ingenuity of lawyers can devise (whether done purposely or inadvertently) amounts to little or no avoidance of confusion. This becomes confusing even to lawyers and judges, and most certainly to laymen. .
“Also, the supposed elimination of confusion under the notion that the court’s charges or instructions given after the jurors have been exposed to voir dire examination on points of law, for, say, two days, and after they have listened to testimony for, say, two or three days, and then have listened to argument of counsel, amounts to very little protection from the confusion of the jurors. It seems to this court to be far too much to expect of jurors that they can accept the proper law from the court in its charge and then relate this back to wipe out the confusions arising on voir dire expositions or shades of meaning regarding the law several days before, which confusion and uncertainty necessarily persists until the court’s charge, if not beyond them.
“Both the prosecution and the defense may present additional points of law to the court to be read on ‘pre-instruction’ and that was done in this case. They may also object to any part of the ‘pre-instruction’ which they feel is incorrect or inappropriate. The rulings on such presentations or objections are of course subject to review on properly reserved and perfected bills of exception.

A portion of the trial court’s per curiam to Bill of Exceptions No. 2 is as follows:

“. . . There were additional rulings by the court relating to the procedure during voir dire examination by the district attorney and by defense counsel, but they were consistent with the' court’s . Some of the proposed questions simply duplicate a portion of the court’s ‘pre-instruction’ on the law and the court’s questions thereon to the prospective jurors on whether they heard and understood the rules of law read to them and whether they could and would apply those rules. Such proposed questions by defendant’s counsel were therefore disallowed. Other proposed questions contained incomplete, confusing, and/or incorrect statements of law and these were therefore disallowed also. Those which the court found to be correct and which were not simply repetitious of the court’s own statements of the law, and questions to the jurors thereon, were allowed. Actually, the court had reservations of the total correctness or completeness of some of the questions allowed. The court also disallowed those proposed questions which were merely repetitious of other proposed questions presented by defense counsel and which latter were allowed. It should be noted that the court had a copy of defense’s counsel proposed questions which were read into the record by defendant’s counsel. That is why a proposed question read early in the reading could be disallowed on the basis of being covered by a later question which was to be allowed by the court and which was simply read later and was, in fact, allowed.”

The issue raised in these bills concerns the authority of the court to instruct prospective jurors on voir dire. The trial judge stated that these instructions were designed “to minimize confusion of the jurors on the points of law they must apply.”

The trial judge has the right to examine prospective jurors. Article 786 provides in part:

“The court, the state, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court.”

In the instant case the preselection instruction procedure adopted by the trial judge did not prevent either the prosecution or the defense from presenting additional points of law or from objecting to any portions of the instruction that either side deemed inappropriate.

Bill of Exceptions No. 3 was taken when the court sustained the State’s objections to a series of questions propounded by defense counsel. These statements of law were covered in the lengthy instruction of the prospective jurors by the court. Limitations on voir dire examination should be applied with great caution, since both sides should be afforded an opportunity to determine the attitudes and inclinations of prospective jurors as a basis for exercising their challenges. State v. Hills, 241 La. 345, 129 So.2d 12 (1961). Nevertheless, the remarks of defense counsel in this case were needlessly repetitious and properly excluded.

In short, there was no question of curtailment of voir dire examination in this case. In addition to _ the examination by the judge, the examination by the attorneys was full and complete. They were allowed wide latitude. The voir dire examination covered over two hundred twenty-five pages of the record.

There is no merit in these bills.

Bill of Exceptions No. 4 was reserved when the district court sustained the State’s objection to the following question about the victim: “Did he frequently have trouble with other customers there?” (At the witness’ bar). Defendant argues that the evidence was admissible “on the issue of provocation and on the issue of the reasonableness of defendant’s apprehension of great bodily harm.” Trouble with other customers is not relevant to an “issue of provocation.”

The evidence indicates that the decedent and defendant had argued long and loud in a barroom. There was testimony that the decedent had struck or pushed the defendant in another altercation; when the altercation was broken up, the defendant left, then returned to the bar and left some keys, then again departed; during this interval the decedent broke a bottle in the bar, then assisted in sweeping up and finally left. In a few seconds those who remained in the bar heard the two shots which hit decedent.

Defendant testified that when the decedent emerged from the bar he threatened to cut defendant in two, and that defendant warned decedent to stop or be shot. Decedent was drunk, younger and larger than defendant.

Defendant’s reasonable apprehension of danger is relevant to a self-defense plea like this. The question asked about “trouble with other customers,” however, did not clearly enough alert the court to an attempt to prove that defendant knew of the dangerous character of the decedent, and was therefore apprehensive. Nor did defendant make any further effort to prove that decedent’s dangerous character related to his fear of bodily injury.

The jury had before it volumes of evidence which detailed dangerous and aggressive acts of the decedent. Undoubtedly the jury weighed this evidence against that which showed the defendant, who customarily armed himself with a pistol, waited outside the saloon until decedent emerged, then shot him twice.

There is no merit in Bill No. 4.

Bills of Exceptions 4 through 14 relate to the granting of certain charges requested by the State and the denial of requested charges. Defendant in brief does not point out any wholly correct charge requested and not given, nor any erroneous charge given. His principal objection is that “great confusion” resulted from the instructions given the jury at the beginning of the case, the request of attorneys, and the final charge.

Examination of the charge given to the jury shows it to be full and complete, and not in error. There is no merit in these bills.

Bill of Exceptions No. 15 complains that the verdict of the jury was written by one person and signed by another. It is true that the signature of the foreman seems to be in different handwriting from the balance of the verdict, which read:

“December 16, 1972
“All twelve (12) jurors voted a verdict of Guilty of Murder without Capital Punishment.
“Signed this date by Foreman
s/Ervin Fontenot”

The jury was polled and each juror agreed that the verdict returned was his own. There is no uncertainty in the verdict. We will not reverse a conviction otherwise regularly obtained on such insubstantial error.

The conviction and sentence are affirmed.

BARHAM, J., dissents and assigns reasons.

BARHAM, Justice

(dissenting).

Defendant reserved Bill of Exceptions No. 1 when the trial court declined to abandon a procedure of pre-instruction of prospective jurors with corresponding curtailment of voir dire examination by the State and the defense in favor of the more widely used method of broad questioning on voir dire. Bill of Exceptions No. 3 was reserved when the trial court sustained numerous State objections to voir dire inquiry by defendant concerning matters covered by the court’s broad pre-instruction.

Defendant argues that the curtailment of the scope of the voir dire which resulted from the use of the pre-instruction technique reduced his opportunity to gain knowledge upon which to exercise his right to challenge jurors peremptorily or for cause. He also argues that the pre-in-struction procedure (and the 24-hour continuance which he requested and which was granted in order to allow him to adjust the rhythm of the defense to the new procedure) added to the slow pace of the trial and caused prejudice against him.

In brief, the State argues that the procedure used had been authorized in State v. Sheppard, 263 La. 379, 268 So.2d 590 (1972), that the Sheppard opinion was the law at the time of defendant’s trial and that the Sheppard decision was not affected until this Court decided State v. Jones, 282 So.2d 422 (La. 1973), wherein Sheppard was overruled to the extent that it conflicted with principles there set forth. The State further argues that defendant has not pointed to any particular difficulty with any juror or jurors, has not shown that he was forced to accept an obnoxious juror, and has not shown that he suffered any violation of his constitutional rights.

In its per curiam, the trial court explained that the reason for utilizing the pre-instruction procedure was to minimize confusion of the jurors on the law to be applied. The pre-instruction on general principles of the law to be applied was accomplished by reading the instructions to the prospective jurors en masse and then asking the jurors as a body if they heard the instructions, if they understood the instructions as read, and if they were willing to accept and apply the law as given by the court. The prospective jurors were first expected to respond as a group after each of these three questions was asked by raising their right hands. Next, the jurors were polled individually and responded orally to each of these questions. The court’s per curiam points out that although the procedure was designed to prevent mere repetition of the points of law covered by the pre-instruction, a request to probe any particular prospective juror or jurors on any point of law covered in the pre-instruction, even if simply to determine whether the juror could and would apply the law, would be granted if a good reason therefor was stated. The per curiam further notes that objections to parts of the pre-instructions were allowed and that both the prosecution and the defense were permitted to present additional points of law for inclusion in the pre-instructions.

Of course defendant has a constitutional right to peremptorily challenge jurors. La.Const. Art. 1, § 10. C.Cr.P. Art. 786 acknowledges this right by providing that defendant may examine prospective jurors and further provides that the scope of voir dire examination shall be within the discretion of the court. The discretion to be exercised by the trial court is discussed in State v. Hills, 241 La. 345, 129 So.2d 12 (1961), wherein this Court, in reversing a conviction, made the following statements:

“It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of peremptory challenge — since each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner.”

In State v. Jones, supra, this Court discussed the discretion of the district court in limiting the scope of voir dire examination of prospective jurors. We held that the district court’s discretion is limited by the jurisprudence of this State as it existed at the time of the adoption of the Code of Criminal Procedure of 1966. We stated in that opinion:

“ * * * At that time, as noted in State v. Hills, counsel in criminal cases were allowed a wide latitude in voir dire examination, and ‘the scope of inquiry is best governed by a liberal discretion on the part of the court.' ”

In proceedings the transcript of which is attached to these bills of exceptions, the trial court stated its intention:

“ * * * to limit the examination of the State and the Defendant of the prospective jurors with regard to specific questions or interpretations ideas of the law in accordance with the Shepard [sic Sheppard] Decision of the Supreme Court * * *

When the defense counsel endeavored to exercise his right to examine the prospective jurors on voir dire, he asked questions concerning the prospective jurors’ understanding of the trial court’s instructions on certain points of law and their willingness and ability to apply the law as given. Objections by the State were sustained, the trial court ruling that all prospective jurors had sworn their understanding and their ability and willingness to apply the law.

We believe that the en masse instruction of a large body of prospective jurors, during which numerous highly technical and sophisticated principles of law are explained, and the subsequent perfunctory inquiry into the prospective jurors’ understanding of, and willingness and ability to accept and apply, these lengthy and complicated principles do not in any measure adequately provide the defendant (or the State) the means of securing information relative to these issues which would enable them to intelligently exercise the right to challenge peremptorily or for cause. Even the decision in State v. Sheppard, supra, acknowledges the well-established principle that the scope of voir dire must be such that the defense and the State will be able to intelligently exercise the right to challenge peremptorily.

Defense counsel attempted to question one of the prospective jurors on such issues as the presumption of innocence, burden of proof, reasonable doubt, provocation, direct and circumstantial evidence, responsive verdicts and the defendant’s right to decline to testify in order to ascertain the juror’s understanding of these concepts and his willingness to apply the law as given by the court. Defense counsel was not permitted to ascertain the juror’s answers to these questions. The trial court’s refusal to allow defense counsel to follow this line of questioning was based solely on the fact that these issues had been covered in the lengthy and complicated en masse pre-instruction procedure where these and many other points of law were covered at one time. In my opinion, this procedure cannot be regarded as an adequate substitute for a direct, one-to-one and individual inquiry into each prospective juror’s understanding of the various points of law and willingness and ability to apply them.

While I am mindful of the fact that a judgment must not be reversed by our Court unless an error “ * * * constitutes a substantial violation of a constitutional or statutory right” (C.Cr.P. Art. 921), I am of the opinion that under thé circumstances present here the procedure of pre-instruction utilized, coupled with the attendant restriction of defendant’s right to examine prospective jurors on voir dire, effectively deprived the defendant of his right to conduct voir dire in a manner which would allow him to intelligently exercise his constitutional right of peremptory challenge. Contrary to the contention of the State in brief, I find that the defendant has shown that he has suffered a violation of a constitutional right.

For the reasons expressed hereinabove, I respectfully dissent.  