Stringfellow v. State
Stringfellow v. State
Opinion
Donald Earl Stringfellow was convicted of sodomizing his eleven-year-old stepdaughter in violation of §
[THE COURT] "Let me tell you one other thing before you get started. I'm not going to let anyone ask the jurors: have any of you been the victim of sexual assault. Now, you know, when that particular time comes, if you ask that, and you make an objection, Ron, [district attorney] I'm going to sustain the objection. But if ya'll want to, you can word it this way, you can ask them, if any member of your family has ever been the victim of any type of an assault; and if it would be embarrassing for you to let us know at this time, please come up and talk to the Judge after we get through. Now, I'll let you do that. But I'm not going to make anyone stand up out there and say that they have been the victim of a sexual assault.
"MR. COX: That is the dilemma of the defendant in this case, that if I ask them that and embarrass them.
"THE COURT: Well, you know, you can ask if any of them have been the victim of any type of assault. And if it is embarrassing that you can come up here and talk now or come up and talk to the judge after I get through.
"MR. COX: Well I hope that ya'll are willing to bear with me, because I have got an awful lot of questions; just because of the nature of this case.
"MR. [RON] MYERS: I understand.
"THE COURT: Okay."
After the above discussion, the appellant's trial attorney began his voir dire examination of the jury. There is nothing in the record to indicate that an objection was made concerning the procedure suggested by the trial court. It is well settled law that appellate review is limited to those matters on which rulings have been invoked in the trial court. The record does not contain any refused requested voir dire questions. Absent an adverse ruling in the lower court, or an objection to the court's failure to rule, there is nothing to review. Whorton v. State,
A party may have a prospective juror removed for cause if he establishes that the juror has a "fixed opinion as to the guilt or innocence of the defendant which would bias his verdict." §
During the voir dire of Mrs. Barker; the following occurred:
"MR. MYERS: Despite the fact that you are opposed to child abuse, do you feel that you would be able to sit on the trial of this case, be on the jury, and base your verdict solely on the evidence as it comes to you from the witness stand, and nowhere else?
"A JUROR: I would try very hard to base my opinion on the facts presented, but —
"MR. COX: But your basic attitude, is, that you've got a mind set against it to start with?
"A JUROR: Yeah, you know.
"THE COURT: Well, let me ask you this: do you have a mind set against murder?
"A JUROR: Well, everybody does.
"THE COURT: Rape?
"A JUROR: Everybody does.
"THE COURT: Well, James, I'm going to leave her on because she has had her mind set against this, but it's not been proven yet. And as she says she will base her verdict on the evidence in the case.
"A JUROR: I will try real hard, but I do feel very partial toward the child.
"MR. COX: Well, let me ask you this question: will you give the defendant in this case the same opportunity in considering the evidence, as you will as to what is presented by the District Attorney and after you have heard the little child testify?
"A JUROR: I will try very hard to give the same one.
"THE COURT: Anything else? Thank you. You may have a seat."
The testimony of Mrs. Barker indicates that she would base her verdict upon the evidence presented by the parties at trial. Indeed, her response indicates how seriously she considered her duty to be impartial and fair-minded. As this court noted inClark v. State,
"A juror who brings his thoughts out into the open in response to voir dire questions may be the one who later `bends over backwards' to be fair. The judge was in position to hear not only the words recorded by the court reporter but also the meaning actually conveyed by the responding prospective juror. A trial court's ruling on challenges for cause based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion."
We find no abuse of discretion by the trial court in denying the appellant's request to disqualify Mrs. Barker.
Appellant insists, however, that the trial court should have permitted him to further question this prospective juror to determine whether her daughter's experience would prejudice her verdict. We find that counsel had sufficient opportunity to question the witness. The trial judge concluded to his satisfaction that she could render a fair and impartial verdict. The trial court has a great deal of discretion in determining the extent to which a party may examine a prospective juror on voir dire. Dawkins v. State,
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac,
456 U.S. 107 ,133-134 ,102 S.Ct. 1558 ,1574-1575 ,71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' See Michel v. Louisiana, supra, 350 U.S. [91], at 101, 76 S.Ct. [158], at 164 [100 L.Ed. 83 ]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984).
Most of the "errors" alleged by the appellant as evidence of ineffective assistance of counsel concern his trial attorney's not making enough objections to questions. As we observed inBrooks v. State, *Page 1243
"An accused is not entitled to error-free counsel." Phelps v.State,
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Donald Earl Stringfellow v. State.
- Cited By
- 46 cases
- Status
- Published