This is an appeal from a conviction of two counts of armed robbery and concurrent sentences of 98 and 99 years imprisonment at hard labor. We reverse the conviction and order a new trial because the combined effect of the prosecutor's obstructionist tactics and the trial judge's grudging attitude on voir dire and during closing argument created the appearance that the trial judge had abandoned his role as neutral arbiter. When the conduct of the prosecutor and trial judge creates such an impression and thereby undermines the required complete neutrality on the part of the trial judge which is an essential element of a fair trial, a new trial is the only means of affording the defendant a fair opportunity to have the jury decide his guilt or innocence.
This case involves the July, 1979 armed robbery of a clothing store by two men who pretended to be customers. The men used pistols to rob the owner, the manager, three other employees and one customer.
Within hours of the robbery, five of the victims identified one of the perpetrators in a photographic display. However, this robber (Wilbert Kelly) was killed in September in the course of an unrelated crime before he could be arrested for this offense.
In October, 1979, confidential information led to the investigation of defendant as the other perpetrator. Three of the victims provided the identification which resulted in defendant's arrest and prosecution. At trial, the prosecutor's case rested solely on the identification by three of the six victims. Defendant exercised his right not to testify, and the defense strategy was to attack weaknesses in the identification evidence and to rest on the presumption of innocence. Through cross-examination of prosecution witnesses, defense counsel developed and emphasized discrepancies between the perpetrator's height estimated by the victims and defendant's actual height
On appeal, defense counsel presents a two-pronged attack on the fairness of the proceedings and the resulting effect on the jury's resolution of the identification evidence. The attack involves (1) the restriction of voir dire examination and (2) the conduct of the prosecutor and the rulings of the court during closing argument.
During voir dire, defense counsel sought to elicit responses from prospective jurors on their experiences with mistaken
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. Art. I, § 17 (1974). The accused's right to intelligently exercise cause and peremptory challenges may not be curtailed by the exclusion of non-repetitious voir dire questions which reasonably explore the juror's potential prejudices, predispositions or misunderstandings relevant to the central issues of the particular case. State v. Monroe, 329 So.2d 193 (La.1976). On the other hand, a trial judge in a criminal case has the discretion to limit voir dire examination, as long as the limitation is not so restrictive as to deprive defense counsel of a reasonable opportunity to probe to determine a basis for challenges for cause and for the intelligent exercise of peremptory challenges. State v. Williams, 457 So.2d 610 (La.1984) decided this day. Therefore, when the defendant asserts that he has been deprived of his constitutional right to a full and complete voir dire examination, the reviewing court must examine the entire voir dire in order to determine that issue.
Although a review of the entire record of voir dire examination in this case presents a very close question, we decline to reverse the conviction solely because the limitations were so restrictive as to deprive the defendant of a reasonable opportunity to probe for challenges of cause and to exercise intelligently his peremptory challenges. In general, defense counsel through persistence was eventually permitted to inquire into the areas in which he had a right to seek information (except possibly the questioning as to the juror's attitude toward an accused's inability to provide an alibi, which was an area of inquiry almost completely excluded by the judge). Nevertheless, the prosecutor constantly interrupted counsel's questioning by objecting to clearly proper questions, and the trial judge displayed a grudging attitude toward the asking of those proper questions, resulting in the appearance before the jury that defense counsel was wasting time on frivolous technical defenses.
The closing argument by the prosecutor drew four objections. The first one
Immediately thereafter, the prosecutor commented that a bus full of witnesses would not be enough for defense counsel because he was a "very skillful lawyer". When defense counsel properly objected to the personal argument about defense counsel (clearly exceeding the statutory limitation confining argument to the evidence or lack of evidence or reasonable inferences drawn therefrom) and asked for an admonition to the prosecutor to discontinue such tactics, the judge again neither sustained the objection nor gave the admonition, but again made the totally irrelevant statement that he could not comment on the evidence.
The most egregious instance of improper prosecutorial argument occurred during rebuttal
The prosecutor's first comment on evidence outside the record might be excused as innocuous, but the prosecutor's comment on evidence which was excluded from the record is flagrant and inexcusable. Such deliberate misconduct makes a mockery of the rules of evidence and defeats the purpose for excluding unreliable evidence in the first place. Such comments may also lead the jury to believe that defense counsel was using technical objections to conceal his client's guilt.
Finally, the prosecutor concluded his argument with a blatant appeal to prejudice by predicting the dire consequences in case of acquittal.
When such blatantly defiant tactics by the prosecutor are permitted, the result is the frustration of a criminal justice system which is designed to insure that a person is sent to prison only after being convicted on the basis of a jury's fair (and not prejudicially influenced) evaluation of reliable evidence.
This court seldom reverses convictions on the basis of prosecutorial argument (because jurors are generally told repeatedly that they must decide the case on the evidence and that arguments of counsel do not constitute evidence). In the present case, however, the effect on the jury's evaluation of evidence caused by the errors during closing argument, when cumulated with the effect of the errors during voir dire, simply cannot be said to be harmless. Under any concept of fundamental fairness, the judicial system cannot allow to stand a guilty verdict reached by a jury exposed to such prejudice as to preclude a fair determination of guilt or innocence based on the acceptance or rejection of the identification evidence.
Accordingly, the conviction and sentence are reversed, and the case is remanded to the trial court for a new trial.
CALOGERO, J., will assign additional concurring reasons.
BLANCHE, J., dissents and assigns reasons.
WATSON and MARCUS, JJ., dissent.
BLANCHE, Justice (dissenting).
The majority relies on the combined effect of the prosecutor's obstructionist tactics and the trial judge's grudging attitude on voir dire and during closing argument to find that the trial judge had created the appearance (that he had) abandoned his role as a neutral arbiter. I am unable to join in reversing the conviction on these grounds, being of the opinion that the record does not support such a finding and that the defendant did receive a fair trial, albeit the prosecutor's conduct was unprofessional and discourteous.
The case was solely one of identification, the evidence of which I find to be of such force that notwithstanding the complained of conduct of either the judge or prosecutor that the jury verdict (10-2) could not have been influenced thereby.
I respectfully dissent.
More significant than the numbers, of course, is the fact that many of the objections were no more than unfounded attempts to halt from the outset any inquiry into extremely relevant matters. For example, the prosecutor objected to defense counsel's first question whether any of the jurors had ever experienced a case of mistaken identity, which was the sole defense in this case. Later, the prosecutor objected to a question about the jurors' attitude toward an accused's inability to provide an alibi, on the basis that the defense in this case was mistaken identity and not alibi. Then when defense counsel turned to questions about the jurors' attitude on an accused's exercise of his right to testify, the following occurred: