 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Lotches12/29/2000
nds that the trial court erred in excusing for cause two other prospective jurors, Warren and Robotham, who expressed their personal opposition to the death penalty. Third, defendant claims that the prosecutor improperly vouched for his case during thevoir direprocess by stating that he "anticipated" that defendant would be found guilty of aggravated murder and that there would be a penalty phase to the trial. We do not consider that third assignment of error, because it was not preserved in the trial court and, in any event, this court rejected that precise claim inState v. Nefstad, 309 Or 523, 526-27, 789 P2d 1326 (1990) (prosecutor's statement to effect that "I anticipate" there will be a penalty phase to the trial held not to constitute improper expression of belief in the defendant's guilt). For the reasons that follow, we also conclude that neither of defendant's other jury selection arguments is well taken.
Jurors may be challenged for cause on the basis of, among other things, actual bias.ORCP 57 D(1)(g) (incorporated by reference and made applicable to criminal trials in ORS 136.210(1)). The determination whether a prospective juror actually is biased is a factual question "to be determined by the trial court in the exercise of its discretion."Montez, 309 Or at 574-75; ORCP 57 D(1)(g). Because the trial court has the advantage of observing the challenged prospective juror's demeanor, apparent intelligence, and candor, that court's judgment as to a prospective juror's ultimate qualifications is entitled to great weight.Montez, 309 Or at 575;Lambert v. Srs. of St. Joseph, 277 Or 223, 228-29, 560 P2d 262 (1977). Accordingly, the trial court's decision will not be disturbed absent a finding of "a manifest abuse of * * * discretion."Nefstad, 309 Or at 528.
As this court stated inMontez, " prospective juror's approval of or opposition to the death penalty alone is not determinative of whether the juror may serve as a juror or must be excused. The question is whether the prospective juror's views would prevent or substantially impair the performance of his or her duties if selected as a juror." 309 Or at 575. The trial court makes that determination by looking at the totality of the potential juror'svoir diretestimony to discern whether it suggests the "'probability of bias.'"Nefstad, 309 Or at 537 (quotingLambert, 277 Or at 230).
Defendant argues that Nunez should have been excluded for cause, because he had expressed a general view in favor of the death penalty for individuals convicted of aggravated murder. However, as explained above, the fact that a juror favored the death penalty would not necessarily disqualify the juror from serving as a juror. The question, then, is whether there is evidence in the record to support the trial court's conclusion that Nunez could serve as a fair and impartial juror. There is such evidence.
Both in his questionnaire and in his response to defense counsel questioning, Nunez responded that he did not believe that the death penalty was appropriate in all cases of aggravated murder. He also expressed his belief that he could put aside his feelings regarding the death penalty and make a decision in the case on the basis of the evidence and the court's instructions. Hisvoir direexamination does not establish that he was biased against defendant personally or that he was unable to follow the law. The trial court was entitled to believe that Nunez would be a fair and impartial juror. We find no error.
Defendant also contends that the trial court abused its discretion (and therefore erred) in excluding Warren and Robotham on the state's for-cause challenge. Defendant argues that the record with respect to each juror demonst
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Oregon DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|