Having to use a Peremptory Challenge to Correct the Trial Court was Plain Error
State
v. Ho (HSC May 9, 2012)
Background. Patrick Ho was indicted for three counts of Sexual
Assault in the First Degree, HRS §§ 707-730(1)(b) and (c), and nine counts of
Sexual Assault in the Third Degree. HRS §§ 707-732(1)(b) and (c). The complainant
was a teenaged girl.
During the jury selection hearing, Juror 19 told
the court that she had been sexually assaulted as a child, but assured that she
could be fair. Ho asked if she understood the presumption of innocence and
Juror 19 said "there's a possibility that he is guilty because we're here."
The court denied Ho's request to excuse Juror 19 for cause. "Juror
23a" also reported being sexually assaulted and also assured that she
could be fair. She added that she had a friend in law enforcement. As Ho was
trying to question her, the trial court cut him off and then denied his request
to strike her from the panel for cause. After passing for cause, the parties
moved on to exercising peremptory challenges.
Ho was forced to use two out of his three peremptory
challenges. The final peremptory was used upon a potential juror who had found
someone guilty in another criminal case and who testified that she would do the
same for Ho "if she only suspected guilt." After Ho finished his peremptory challenges,
the prosecution "renewed" a request for striking for cause.
The prosecution asked the two to be stricken
because it believed they struggled with the English language. The prosecution did
not have to waste peremptory challenges. Those jurors were stricken and Jurors
No. 7 and 9 made it onto the panel. No one questioned them. They heard the
trial and rendered a verdict. The jury
found him guilty of two counts of first degree sexual assault and three counts
of third degree. Ho appealed. The ICA affirmed. Judge Ginoza dissented.
How to Pick a
Jury. When the offense is not punishable
by life in prison, each party has three peremptory challenges to strike jurors
from the panel even though they have been passed for cause. HRS § 635-50; HRPP
Rule 24(b). Four "alternate" jurors may be selected in case something
happens to a juror during trial. HRPP Rule 24(c). Parties get one preemptory
among the alternates. "Challenges for cause may be made at any time prior
to the exercise of peremptory challenges." HRPP Rule 24(d). Challenging
for cause can only arise before peremptory
challenges. HRPP Rule 24(d). Finally, the prosecution has as many peremptory
challenges as are allowed to the defendant. HRS § 635-50; HRPP Rule 24.
The HSC reviewed State v. Cravalho, 79 Hawai'i
164, 174 P.2d 217 (App. 1994) and State v. Timas, 82 Hawai'i 499, 923
P.2d 916 (App. 1996). In Cravalho, an alternate was passed for cause,
and the trial court allowed each party one preemptory challenge. The
prosecution "waived" its challenge, and the defendant struck the
juror. The circuit court empaneled another juror and the defendant could not
exercise its preemptory challenge even though the prosecution had the
opportunity to exercise its challenge. The ICA held that that was error because
the defendant had been compelled to exhaust its preemptory challenges and the
prosecution, in effect, had a second chance to strike a juror. Id. at
171, 880 P.2d at 223. Similarly, in Timas, the ICA held that the circuit
court erred in passing an alternate juror for cause after the defendant
exercised all of its preemptory challenges. Timas, 82 Hawai'i at 509,
923 P.2d at 924.
Prosecution
can't "Renew" Objections for Cause Once Peremptory Challenges Made. The HSC held that the procedure here was improper.
The prosecution did not "renew" its motion to have two jurors
stricken for cause until after they had exhausted their peremptory challenges. In
granting the motion, the trial court deprived Ho of (1) "the opportunity to
compare and contrast the relative qualifications of the twelve jurors passed
for cause before exercising his peremptory challenges; and (2) [Ho] was
deprived of the opportunity to exercise any peremptory challenges with respect
to the two jurors" who came in. The HSC added that the "renewed"
motion to strike for cause was really two more peremptory challenges.
Prejudice
Shmejudice. Errors arising from
the selection of jurors are not like other kinds of errors. "[T]he denial or
impairment of a defendant's right of preemptory challenge in a criminal case is
reversible error not requiring a showing of prejudice." Timas, 80 Hawai'i
at 509, 923 P.2d at 926. This is because the right to exercise a peremptory
challenge is "one of the most important rights secured of an accused in a
criminal case[.]" State v. Kauhi, 86 Hawai'i 195, 198, 948 P.2d 1036,
1039 (1997). The HSC did not have to find prejudice, vacated the judgment, and
remanded for new trial.
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