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State v. Bush6/26/2002
However, upon further questioning, she repeatedly expressed her concern about the defendant's failure to testify. After more intense questioning, Ms. Sanderson was unable to state with certainty that she would not hold the defendant's failure to testify against her and stated it "would creep into her mind" despite an instruction from the judge that she was not to hold it against the defendant.
In State v. Cross, 93-1189 (La. 6/30/95), 658 So.2d 683, 687, the Louisiana Supreme Court found the trial court committed reversible error in refusing to excuse a prospective juror for cause when the juror indicated a defendant's failure to testify would lead him to think the defendant was hiding something and would impact his ability to be a fair juror. The Supreme Court noted there was no effort made by the trial court or the prosecution to rehabilitate the juror who had stated his inability to follow the law. The Supreme Court explained that "it is an important part of voir dire examination to discover any prospective juror who may have difficulty understanding this right (the presumption of innocence) as well as to discover a juror who may hold it against a defendant who exercised the right." State v. Cross, supra.
In this case, like in State v. Cross, supra, there was no attempt to rehabilitate Ms. Sanderson after she stated that she might hold defendant's failure to testify against her.
The trial judge's comment that Ms. Sanderson stated during voir dire that she would not hold the failure of the defendant to testify against her completely disregards the juror's later responses during more direct and intense questioning. Ms. Sanderson's voir dire responses as a whole reveal she was unable to follow the law and not allow defendant's silence to affect her verdict. Ms. Sanderson never clearly stated that she would be able to put defendant's failure to testify out of her mind and decide defendant's guilt or innocence solely on the evidence presented. Thus, the failure of the trial court to excuse Ms. Sanderson for cause was an abuse of discretion and constitutes reversible error.
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