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10/07/93 JAMES C. FINLEY v. UNITED STATES

October 7, 1993

JAMES C. FINLEY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Shellie F. Bowers, Trial Judge)

Before Steadman and Schwelb, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Finley was charged by information with simple assault on Andrew Nathan, in violation of D.C. Code § 22-504 (1989). Both men are in their sixties. Finley claimed that he acted in self-defense, but following a jury trial he was found guilty as charged. On appeal, Finley contends that the trial Judge committed reversible error by improperly restricting voir dire and by overruling his objections to certain testimony. We affirm.

I.

Finley claims that the trial Judge erroneously declined to inquire on voir dire whether any of the jurors had watched a four-hour television program which, according to Finley's attorney, aired during the two evenings before the jury was selected. Defense counsel initially proffered in the trial court that "the main character [in the program] was the defense attorney, and he presented a false alibi defense and he ended up hoodwinking the jury on that false alibi defense." Counsel then corrected himself and stated that "the jury was hood-winked by self-defense." Id. Counsel asserted that

it was a false defense which the main character presented, and as a result of that defense he got this female defendant acquitted. He was able to fool the jury with that defense. And I would submit that -- this program ran for four hours, two hours Sunday night and then the final two hours last night, and I believe that anybody that saw that program would be leery of a self-defense defense hearing it the next day. They're going to be saying haven't I heard this before and isn't this a trip?

Whether, you know, consciously or subconsciously, I submit that after seeing that program a juror could not be impartial, would be disinclined to believe the theory of self-defense.

The Judge declined to pose the requested questions. He stated that jurors know that such programs "are figments of some writer's imagination which may or may not be consistent with what happens in real life." The Judge stated that he would explain to the prospective jurors that self-defense is a legitimate defense and would inquire whether any member of the venire believed the contrary. *fn1

II.

Finley contends that the Judge's ruling denied him his right under the Sixth Amendment to trial by an impartial jury.

Asserting that the "television extravaganza" was "most certainly" viewed by some of the jurors, he argues in his brief in this court that

the program had impact. It centered upon a defense counsel and his female client who successfully raised a false "self-defense" claim to get the wrong-doer acquitted. The wrongdoer won. The result was distressing. The program with its stunning ending culminated the very night before the jury was selected. The jury in the television was hoodwinked by a fraudulent self-defense claim. This would certainly make the jury leery upon reporting to court the very next day and being confronted with the same defense claim.

The voir dire at an absolute minimum should have revealed which members of the panel viewed the program. If this had not led to disqualification for cause, it was certainly necessary to enable appellant to exercise his challenges in an intelligent manner.

Trial counsel should be afforded opportunity on voir dire to gain necessary information upon which to base peremptory challenges. United States v. Ledee, 549 F.2d 990 (5th Cir.), cert. denied, 434 U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct. 297 (1977). Similarly, defendant is entitled to have sufficient information brought out on voir dire to enable him to exercise his challenges in a reasonably intelligent manner. United States v. Rucker, 557 F.2d 1046 (4th Cir. 1977). It was no remedy for the trial Judge to permit voir dire along the line of "whether anybody believed self defense is not a legitimate defense." Perfunctory voir dire has been condemned where the Judge relies on a juror's own ...


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