                              THIRD DIVISION
                             ELLINGTON, P. J.,
                         ANDREWS and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 31, 2017




In the Court of Appeals of Georgia
 A17A1007. LESTER v. THE STATE.

      RICKMAN, Judge.

      Marquis Lester was indicted for aggravated battery (OCGA § 16-5-24) and

aggravated assault (OCGA § 16-5-21) for striking a woman in the face with a pool

stick (also known as a pool cue), ultimately resulting in the loss of her eye. The jury

found Lester guilty of aggravated assault and not guilty of aggravated battery. Lester

appeals his conviction and the denial of his motion for new trial, contending that the

trial court abused its discretion when it barred Lester’s counsel from asking certain

questions during voir dire, thereby denying Lester the opportunity to expose possible

bias in the potential jurors, and that the trial court erred in denying Lester’s motion

to strike the venire after the State displayed demonstrative versions of a pool stick in

the courtroom during voir dire. For reasons that follow, we affirm.
      On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d

560) (1979). So viewed, the evidence showed that on February 1, 2010, the victim

(Lester’s former girlfriend) went to a bar that Lester frequented regularly and saw

Lester sitting at a table. As she walked past Lester on her way to the bar to buy a

drink, he verbally insulted her. After she purchased a drink, she went outside and then

returned to use the restroom. When she was headed toward the restroom, Lester

continued to make insulting comments to her, while tossing a pool stick back and

forth between his hands. The victim testified that “after the continuous taunts,” she

threw her drink in his face. She then remembers being hit in the head, and feeling

excruciating pain, but could not remember further details. The victim was shown a

video surveillance tape of the incident, which was published to the jury , and testified

that the video shows she put her hand up in an attempt to block a pool stick that

Lester used to hit her. After she had been struck, she bent over and Lester pushed her

out of the way and walked out laughing, with the pool stick in his hand. An employee

of the bar helped her up and gave her a towel for her face, which was bleeding

profusely. The victim then went to the hospital. The injuries she sustained included



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a split eyelid and a ruptured globe, and she ultimately lost her eye.1 While she was at

the hospital, the victim told police officers that Lester is the person who had caused

her injuries. Lester contacted her after the incident and said that he was sorry and did

not mean to do it. At trial, the victim identified Lester as the person who struck her

in the face with a pool stick on February 1, 2010.

       Lester testified at trial and admitted hitting the victim with the pool stick, but

claimed that he was acting in self-defense. He testified that he was not trying to hurt

her.

       1. Lester contends that the trial court abused its discretion by refusing to let

him ask potential jurors two questions – (1) Is there anyone here who believes that

a woman cannot be the aggressor in an argument with a man? and (2) Is there anyone

here who believes a man cannot defend himself from physical violence by a woman?

He argues that the trial court’s ruling denied him the opportunity to expose possible

bias in potential jurors.




       1
        The victim underwent surgery the night of the incident to put her eye back
together, but she had no vision in the injured eye. She later underwent another surgery
to remove her injured eye to avoid possible injury to the other eye. At that point, the
victim had no use of her injured eye.

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      The limits a court may place on voir dire questions lie largely within the sound

discretion of the court, and we will not interfere with the exercise of that discretion

unless it is manifestly abused. Ganas v. State, 245 Ga. App. 645, 647 (2) (537 SE2d

758) (2000). OCGA § 15-12-133 delineates the proper scope of questions during jury

selection and provides:

      . . . In all criminal cases, both the state and the accused shall have the
      right to an individual examination of each prospective juror from which
      the jury is to be selected prior to interposing a challenge. The
      examination shall be conducted after the administration of a preliminary
      oath to the panel or in criminal cases after the usual voir dire questions
      have been put by the court. In the examination, the counsel for either
      party shall have the right to inquire of the individual prospective jurors
      examined touching any matter or thing which would illustrate any
      interest of the prospective juror in the case, including any opinion as to
      which party ought to prevail, the relationship or acquaintance of the
      prospective juror with the parties or counsel therefor, any fact or
      circumstance indicating any inclination, leaning, or bias which the
      prospective juror might have respecting the subject matter of the action
      or the counsel or parties thereto, and the religious, social, and fraternal
      connections of the prospective juror.


      “Voir dire should allow both parties an opportunity to ascertain the ability of

the prospective jurors to decide the case on its merits, with objectivity and freedom



                                          4
from bias and prior inclination.” (Citation and punctuation omitted.) Anderson v.

State, 236 Ga. App. 679, 682 (3) (513 SE2d 235) (1999). But no question should

require a response from a juror that might amount to a prejudgment of the case. Id.

      Lester argues that the questions permitted by the trial court were insufficient

to expose bias in the potential jurors and that his questions should have been

permitted because the subject matter of the action was an altercation between a man

and a woman, and the man claimed self-defense. Thus, Lester’s proposed questions

sought juror’s impressions of his defense in this case. This Court has previously held

that the trial court did not abuse its discretion in refusing to allow questions designed

to find jurors willing to accept a particular defense. See Stewart v. State, 262 Ga.

App. 426, 427-428 (1) (585 SE2d 622) (2003) (trial court did not abuse its discretion

in limiting defendant’s voir dire questions regarding the jury’s experience with self-

defense); Meeks v. State, 216 Ga. App. 630, 632 (4) (455 SE2d 350) (1995)

(“Meeks’s proposed questions. . . sought not to ferret out bias or impartiality, but to

find jurors amenable to the defense his lawyer would attempt to argue.”); see also

Henderson v. State, 251 Ga. 398, 400 (1) (306 SE2d 645) (1983) (“[q]uestions

seeking to test the prospective jurors’ willingness to accept defenses have been

disallowed and upheld on appeal”).

                                           5
      And this is not a case in which the trial court foreclosed all inquiry concerning

the subject matter to which the questions were directed. The entire panel was asked

the following: “Is there anyone here who has had to defend themselves or others from

physical violence?”; “Has anyone been involved in a physical altercation with a

member of the opposite sex?”; and “Has anyone witnessed a physical altercation

between members of the opposite sex?” During individual voir dire, Lester’s counsel

was permitted to follow up on those questions and specifically asked numerous

prospective jurors if the woman was the aggressor in the fights they had witnessed.

After reviewing the record, we conclude that the thorough voir dire in this case was

sufficient to ascertain the fairness and impartiality of the prospective jurors, and find

no manifest abuse of discretion by the trial court. See Sallie v. State, 276 Ga. 506, 510

(3) (578 SE2d 444) (2003).

      2. Lester contends that the trial court erred in denying his motion to strike the

venire after the State displayed demonstrative versions of a pool stick in the

courtroom during voir dire. He argues that the presence of the pool sticks constituted

an improper influence on the jurors.

      During voir dire, two of the potential jurors who answered affirmatively when

asked if they had any prejudice or bias either for or against the accused mentioned the

                                           6
presence of the pool sticks. When questioned individually, Juror 29 stated that he saw

the two pool sticks and started to put a story together in his mind about how Lester

had hit somebody with it. When asked if he recalled that the judge had read the

indictment of the charges and stated that the State is alleging that Lester struck

someone with a pool stick, Juror 29 said that he did. The prosecutor then asked if the

statement from the judge would have gotten him to the same place even if he had not

seen the pool sticks, and Juror 29 said “I believe so.” Lester’s counsel moved to strike

Juror 29 for cause, and the trial court denied the motion. Lester’s counsel then moved

to strike the entire panel, arguing that the jurors had been tainted as far as what the

evidence may be in this case. The trial court denied the motion.

      Juror 36 was also questioned individually and stated that the combination of

seeing the pool stick and hearing the information about the charges caused her to

raise her hand when asked if her mind was perfectly impartial. She said that she is a

visual person and has a weak stomach so “the whole pool stick to the eye really got

me. . . .” When questioned by the defense, Juror 36 stated that her opinion was that

“he probably did do that because you only have two witnesses and they named like

eight, and they had doctors.” Neither Juror 29 nor Juror 36 served on the jury.



                                           7
      To support his contention that the presence of the pool sticks was an improper

influence on the jurors, Lester relies on Bass v. State, 285 Ga. 89 (674 SE2d 255)

(2009). In Bass, the defendant claimed ineffective assistance when his trial counsel

agreed to allow the county sheriff, who was the lead investigative officer and witness

for the State, to serve as bailiff during Bass’s trial. Id. at 89-90. The Supreme Court

of Georgia recognized that even if the sheriff never discussed the case directly with

any jurors, “it would be blinking reality not to recognize the extreme prejudice

inherent in this continual association throughout half of the trial between the jurors

and this key witness for the prosecution.” (Citation and punctuation omitted.) Id. at

92-93. The Court further stated that “the right to an impartial jury cannot be

reconciled with a practice that, by permitting such witnesses to maintain during trial

a custodial relationship with the jury, lends itself to the presence of influences

extraneous to a proper determination of guilt or innocence.” Id. at 94.

      Lester argues that the presence of the pool sticks created an even stronger

presumption that the jury was influenced than the sheriff’s service as lead investigator

and witness and bailiff in Bass’s trial. We do not find Bass to be analogous or

applicable here. This case is, however, similar to Whitehead v. State, 258 Ga. App.

271 (574 SE2d 351) (2002), in which the defendant complained that the trial court

                                           8
had erred in denying his motion for mistrial based on the State’s allegedly

inflammatory display to the jury pool of numerous firearms owned by his wife,

himself, and his family. Id. at 275 (2). This Court noted that there was “no evidence

that a cache of weapons was openly brandished in the courtroom during voir dire or

prior to trial,” the one weapon that was visible to jurors before trial was moved before

evidence was presented, and subsequent testimony showed that officers removed guns

from Whitehead’s residence and photographs of several of these firearms were shown

to the jury. Id. This Court ultimately held that “physical evidence should not be

viewed by the jury before the trial begins, but under the circumstances here we find

no abuse of discretion on the part of the trial court in denying the motion for a

mistrial.” Id.

       Here, the pool sticks were in the courtroom before voir dire began and,

although Lester’s counsel stated during her motion to strike the panel that she had an

“immediate concern” when she saw them, no one objected to their presence. Before

any jurors were questioned, the trial court read the indictment, which charged Lester

with causing bodily harm to the victim by striking her in the face with a pool stick

and depriving her of the use of her eye. Thus, the potential jurors were aware that a

pool stick was involved in the crimes alleged to have been committed. And before

                                           9
any evidence was presented, the pool sticks were removed from the courtroom.

During the testimony of the owner of the bar where the incident occurred, one of the

typical pool sticks used at his bar was admitted into evidence. Under the

circumstances, we find no abuse of the trial court’s discretion in denying Lester’s

motion to strike the entire jury panel. See Whitehead, 258 Ga. App. at 275 (2); see

also Jones v. State, 240 Ga. App. 723 (1) (524 SE2d 773) (1999) (“The standard of

appellate review for issues regarding jury panel dismissal is whether the trial court

abused its discretion.”).

      Judgment affirmed. Ellington, P. J., and Andrews, J., concur.




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