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State v. Wilson9/7/1999
ualified. Id. at 377. The challenged venireperson must in fact be prejudiced. Id. This means that, if the prospective juror states he or she can set aside a stated concern, be fair and impartial, and follow the court's instructions, the prospective juror has been rehabilitated and a challenge for cause will be denied. Where the prospective juror's answers seem to be equivocal about his or her ability to be fair and impartial, however, then the trial court has an obligation to conduct additional questioning. Id. See also Moore, 927 S.W.2d at 441; Walker, 795 S.W.2d at 525. If the juror is not rehabilitated by such questioning, or then demonstrates an inability to be fair and impartial, he or she must be stricken. Id.
These principles are directly applicable here. In this case, both Mr. Wilson and the State agree that Juror Anderson at best equivocated as to whether he could be fair and impartial if Mr. Wilson failed to testify, and arguably simply stated that he could not be fair. More specifically, during defense counsel's initial voir dire questioning, Mr. Anderson clearly stated that if defendant did not testify, then Mr. Anderson's ability to render a fair and just verdict would be affected. At the close of defense counsel's voir dire and at the State's request, the trial court permitted the State to ask each of the venirepersons who indicated they would be affected by defendant's failure to testify, " f the Court so instructs you, will you follow the Court's instruction and not draw an adverse inference from the defendant's refusal to testify?" Mr. Anderson answered clearly and affirmatively agreed not to draw an adverse inference, although no one explained to him what an adverse inference was and that his answer meant he should not consider the failure to testify at all. In any event, when, following this response, defense counsel specifically asked whether any of the 11 venirepersons who had said that Mr. Wilson's failure to testify would affect them had changed their minds and whether it would still bother them even though they indicated they would follow the court's instructions about adverse inferences, neither Mr. Anderson nor any other prospective juror indicated they had changed their view that they would be affected by defendant's failure to testify.
Considering Mr. Anderson's negative responses to questions regarding defendant's failure to testify, and his lack of response to defense counsel's final general questions on voir dire as to whether he had changed his mind that the failure to testify would affect him, we agree with the State and the defendant that Mr. Anderson's response to the State's question about following the court's instructions was insufficient to rehabilitate him, that Mr. Anderson's ability to be fair and impartial was at best equivocal, and that the trial court erred in failing to strike him for cause.
For the foregoing reasons, we reverse the conviction and remand for a new trial.
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