During jury selection in defendant's trial the state prosecutor asked prospective jurors if any of them would have a problem reaching a verdict in a case where no physical evidence was presented. Three prospective jurors indicated that they couldn't convict a defendant in the absence of physical evidence, whereupon the trial court began asking its own questions. The trial judge asked the potential jurors how they would decide two “hypothetical” cases using facts that were almost identical to the evidence in the defendant's case. The trial judge asked them to assess the hypothetical cases as though they themselves were victims of the crimes and told them his view that the defendants in his hypotheticals should not go free.
A jury was ultimately selected without objection, not including the three prospective jurors who said they couldn't convict in a case lacking physical evidence. And then, on the heels of dismissing the unselected members of the venire, the trial judge reiterated that it was incorrect to think that the State couldn't bring a case in the absence of physical evidence; that it wasn't unusual for there to be no physical evidence in a criminal case; and that no physical evidence doesn't mean there wasn't a crime.
The State's armed burglary case proceeded against the defendant and the evidence against him was very similar to what the trial court had described “hypothetically” at jury selection. The jury found him guilty. And now, defendant seeks a new trial on due process-related grounds, because of the trial court's comments during voir dire.
The trial judge committed fundamental error during voir dire by previewing hypothetical facts to venire that closely matched evidence in defendant's case, asking prospective jurors to assess the hypothetical cases as though they themselves were victims of the crimes, and telling them that the defendants in the hypotheticals should not go free. Reversed and Remanded for new trial.