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TOMLIN v. STATE6/21/1996
r does not take such action. We find that no voir dire question would have elicited this information. Thus M.N.'s failure to disclose this information will not be considered.
4. Juror's criminal record. As noted above, the prosecutor specifically asked, "Has anybody ever had any run-ins with the police? . . . Ever been arrested, ever had to call them out to work a burglary or anything like that?" M.N. did not respond.
In regard to whether he had been arrest-' ed, M.N. testified as follows in the post-trial hearing:
"Q. [defense counsel:] Mr. M.N., have you ever been convicted of any criminal offense?
"A. No.
". . . .
"Q. Were you ever convicted of breaking and entering?
"A. Yes."
The defense introduced two case action summaries showing that, in 1987, M.N. had been arrested and charged with breaking and entering two vehicles, Class C felonies, and, as a second count to those charges, had been charged with two counts of criminal mischief in the second degree, a misdemeanor. It appears that he pleaded guilty to the misdemeanor charges. According to defense counsel's memorandum of the February interview, M.N. recalled that he had pleaded guilty to "a misdemeanor, unlawful breaking and entering" in the late 1980s.
5. Father's criminal record. As noted above, the prosecutor specifically asked, "Has anybody ever had any run-ins with the police? . . . Ever been arrested, ever had to call them out to work a burglary or anything like that?" The prosecutor had prefaced these questions with the following: " n these questions, let them apply, if they do, to your wife, your husband, your best friend, your brother or sister, if you are extremely close to them." As noted, M.N. failed to respond to these questions.
However, in the hearing on the motion for a new trial, M.N. testified as follows:
"Q. [defense counsel:] Do you know if your father has ever been convicted of a crime or arrested?
"A. Yes.
"Q. What kind of problems has he had with the law?
"A. Drugs.
". . . .
"Q. [prosecutor:] Do you remember him — when all that happened when your father was convicted of those crimes?
"A. Yes.
"Q. It says here in the document that Mr. Harcourt gave me that your father has been convicted of about five different crimes; it that true?[ ]
"A. I don't know was it five.
"Q. But he's been convicted of crimes?
"A. Right."
According to defense counsel's memorandum of the February interview with M.N., M.N. revealed that his father "has had many problems with the law."
In arguing in brief that this nondisclosure was prejudicial, Tomlin contends that M.N.'s father's experience with drugs could have influenced M.N. to be more sympathetic to victim Brune because of Brune's alleged drug addiction and habits.
6. Friend in law enforcement. After telling the veniremembers that the questions were to be applied also to "anyone who you think is friendly enough that you think we would want to know," defense counsel asked,
" o any of you have any sons, daughters, wives, have you in the past when you were in the military or something, ever served in law enforcement? And that could include the man down the street who's a policeman who's one of your friends or the man that you got to know through some case you may have had of a bicycle being stolen or anything, anybody in law enforcement?"
Although M.N. did not respond to these questions, he admitted in the hearing on the motion for a new trial that
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