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.

Justice Nakayama's Dissent. The dispute, according to Justice Nakayama, centered around four jurors.  Two jurors were struck by way of peremptory challenges because the trial court refused to strike them for cause. Justice Nakayama pointed out that when jurors do not make it to the jury, there is no prejudice to complain of because the defendant used a peremptory challenge.  State v. Graham, 70 Haw. 627, 636 n. 3, 780 P.2d 1103, 1108 n. 3 (1988); State v. Iuli, 101 Hawai'i 196, 204, 65 P.3d 143, 151 (2003).  For Justice Nakayama, Ho used all three of his peremptory challenges after the panel had been passed for cause. He did not request any additional peremptory challenges and did not object to the passing of the jurors for cause. Ho did not demonstrate how the jury selection hearing impaired his right to exercise peremptory challenges. Justice Nakayama also took issue with the fact that the majority found plain error. Plain error requires an error. Because she would have found no error, Justice Nakayama wrote that invoking the plain-error doctrine was "unwarranted."


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