I just had a frantic call from one of our lawyers who is picking a DP jury.
The defense has just started trying to disqualify jurors on the issue of minimum punishment for murder.
Here's the problem. There is NO WAY that murder will be submitted as a LIO to the jury.
The defendant has admitted to the capital elements - kidnapping, robbery, and rape, in his many, many confessions. Suppression has already been taken care of on the statements.
Further, he's admitted to an intent to kill (shot her in the head w/ a deer rifle, I think) so he won't be entitled to a murder based on knowingly, but not intentionally causing death.
I've done a quick Westlaw search but can't seem to find any case to say that if the LIO isn't an issue, can't disqualify on it. Anyone have a cite handy?
Thanks!

I bounced this question to an intern who has better research skills than I do: (Nothing directly on point, but...)

McCarter v. State 837 S.W.2d 117
"A question is proper if its purpose is to discover a juror's views on an issue applicable to the case"

See Ex PArte McKay, 819 S.W.2d 478, 482 (1990)
Nunfio v. State, 808 S.W.2d 482, 484 (1991)

She couldn't find anything that cross referenced Voir Dire and LIO's. But, you've got a pretty good implied argument from McCarter v. State.

Couldn't misdemeanor assault hypothetically be lesser included offense for those facts ...

So hypotheically a good question is:
Can the potential juror fairly consider the full range of Class A misdemeanor punishment for someone who "intentionally, knowingly, or recklessly causes bodily injury to another"

Rather than something like:
Can the potential juror fairly consider the full range of Class A misdemeanor punishment for someone who intentionally shot another person in the head.

The judge should ask the defense to explain the basis for believing that murder would be a lesser included offense. Absent a good explanation, he/she should sustain the state's objection. If there is no evidnece and no LIO in the charge, there would be no error.

Alex, go back to sleep.