                                                                                            04/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 13, 2018 Session

             GEORGE A. STANHOPE v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Hickman County
                  No. 14-CV-39       Joseph P. Binkley, Jr., Judge
                     ___________________________________

                            No. M2017-00599-CCA-R3-PC
                        ___________________________________

THOMAS T. WOODALL, P.J., concurring.

        I concur in the affirmance of the post-conviction court’s judgment, but write
separately to state my conclusion that trial counsels rendered deficient performance by
failing to object to the prosecutor’s inappropriate questioning during voir dire. The
inappropriate questioning is set forth in the majority opinion and does not need to be
repeated here. Obviously, it is impossible to determine some things from the record
reflected only in the transcript. For instance, the appellate court is unable to ascertain the
volume, inflection, and body language of the prosecutor during this rather unorthodox
voir dire. Was the prosecutor waiving arms in order to instruct the entire venire to answer
aloud at the same time? When the prosecutor informed the venire that the first two
answers (by individual members of the venire) were wrong, what was the emphasis on
the word “wrong?” What was utilized to successfully have the entire venire adopt the
State’s theory in an apparent rhythmic cadence during voir dire? Appellate judges cannot
know the answers to these questions from a cold record. However, the answers are not
necessary to conclude that the pertinent line of questioning was outside the bounds of
proper voir dire. Pertinent to the legal issues involved in this post-conviction appeal is
the fact that the prosecutor’s questions had absolutely nothing to do with whether the
potential jurors could perform their duty without regard to bias or prejudice. The
questioning was a blatant closing argument with the added ability to interact by
conversations with the potential jurors.

       In his well respected treatise, Judge Ward has stated,

              The scope of the examination of the venire . . . is generally
        restricted to eliciting information concerning statutory qualifications and
        the ability of the prospective jurors to provide a fair and impartial trial
        without regard to bias, interest, and prejudice. Inquiry may extend to a
        prospective juror’s occupation, habits, acquaintances, associations and
        other factors, including experiences, which may indicate bias or freedom
        from bias. Inquiry may also be made as to the prospective juror’s
        exposure to pre-trial publicity. It is improper for either party to seek to
        extract a pledge from the prospective jurors.

        ...

        Hypothetical questions substantially outlining the proof to be introduced
        are improper as tending to exact a pledge from the juror. A party must
        object to improper voir dire questions. The grounds for the objection
        must be specific.

W. Mark Ward, Tennessee Criminal Trial Practice § 20:5, at 585-86 (2014-2015 ed.).

      In Smith v. State, our supreme court held as follows:

        A voir dire examination is for the purpose of advising counsel of the
        juror’s qualification, interest, or bias, as a matter of fact, presupposing
        his statutory competence, that is, age, residency, etc. The subjacent
        purpose is to enable the exercise of one’s peremptory challenges. Leach
        v. State, 31 Ala. App. 390, 18 So.2d 285. In this process, it has been
        held, and it seems to us fairly so, that proper fields of inquiry include the
        juror’s occupation, habits, acquaintanceships, associations and other
        factors, including his experiences, which will indicate his freedom from
        bias. People v. Pers, 362 Ill. 298, 199 N.E. 812; Watson v. City of
        Bozeman, 117 Mont. 5, 156 P.2d 178; United States v. Mesarosh, D.C.,
        116 F.Supp. 345.

Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 318 (1959).

       In the pertinent voir dire the prosecutor “educated” the potential jurors that
Petitioner controlled the crime scene, controlled when the crime occurred, controlled
who was present at the time the crime was committed, controlled the type of physical
evidence left at the crime scene, and controlled “how much reasonable doubt’s left at the
crime scene.”

      The fact that all of this improper argument of evidence not yet presented at trial
was followed up by a question of whether any member of the venire believed a defendant
should be “rewarded” for “controlling the scene of the crime” does not nullify the
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improper argument and coaching of the venire by the prosecutor. It was done in violation
of Smith and Tennessee Rule of Criminal Procedure 24.

      Tennessee Rule of Criminal Procedure 24 provides in part that only the initial
remarks by counsel can include information about the general nature of the case, and this
information must be non-argumentative. Tenn. R. Crim. P. 24(a)(2).

       Questioning of potential jurors by counsel is limited to “questions for the purpose
of discovering bases for challenge for cause and intelligently exercising peremptory
challenges.” Id. at (b)(1)

        Trial counsels, or one of them, should have objected to the subject questioning by
the prosecutor. Using the excuse that it was not “[his] call at this point” is not a trial
strategy. Trial counsels rendered deficient performance by failing to object. However,
based upon co-counsel’s opening statement set forth in the majority opinion, and the fact
that there is no evidence in the record that would support a conclusion that Petitioner had
a jury that was not impartial, there is no proof of prejudice. Thus, Petitioner is not
entitled to post-conviction relief based upon the ineffective assistance of counsel.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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