Lee v. Colson, 165
| Citation | 356 A.2d 558,277 Md. 599 |
| Decision Date | 04 May 1976 |
| Docket Number | No. 165,165 |
| Parties | Norman Ray LEE v. Harold G. COLSON et ux. |
| Court | Court of Appeals of Maryland |
Henry F. Leonning, Upper Marlboro, for appellant.
John L. Schroeder, Rockville, for appellees.
Argued before SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.
This appeal arises from an action for personal injuries brought by appellant in the Circuit Court for Prince George's County. Although a jury awarded him damages, appellant is apparently dissatisfied with the amount. On appeal, he presents the narrow contention that because of the inadvertent failure of the trial judge to strike one of the four jurors whom appellant had permptorily challenged at the commencement of the trial, a new trial should be granted. We granted certiorari prior to consideration of the case by the Court of Special Appeals.
The facts are simple and can be stated briefly. Among the four jurors appellant claims to have stricken in the exercise of his peremptory challenges was one 'Joseph F. Gasiewicz' whose occupation was listed as 'Criterion Underwriter GEICO.' 1 Nevertheless, Gasiewicz was among the 12 jurors whose names were called by the clerk, acting at the direction of the court, to take their seats in the jury box. The jury was sworn and the trial commenced, concluding on the following day. Shortly after the jury had retired to deliberate, counsel became engaged in the post mortem discussion which customarily takes place at this juncture of the proceedings. It was then that counsel for appellant claims to have become initially aware of Mr. Gasiewicz's presence on the jury. At no time during the two hours the jury deliberated before reaching its verdict did appellant inform the court of these developments. It was only in his motion for a new trial that appellant, for the first time, advised the court of its inadvertent failure to strike the juror's name from the list of those called to be sworn. In denying the motion, Judge Powers ruled that by failing to raise the question earlier, appellant had waived any possible error committed by the court. We agree.
The effect of the ruling below, appellant argues, is to impose a requirement, where none presently exists, that a formal exception be taken to the court's error in failing to strike a juror. See Rule 522a. Assuming without deciding that the act of exercising a peremptory challenge is the equivalent of an objection, appellant's argument is undermined by his failure to advise the court promptly of what he now concedes was an inadvertent error.
Moreover, wholly apart from appellant's failure to detect the presence of the challenged juror at any time during the trial, he did become aware of the error shortly after the jury retired to deliberate, but offers no explanation for his decision not to raise the matter with the trial judge prior to filing his motion for new trial. While the...
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...716, 327 S.E.2d 747; King v. State Roads Commission of State Highway Administration (1979), 284 Md. 368, 396 A.2d 267; Lee v. Colson (1976), 277 Md. 599, 356 A.2d 558; Vaccaro v. Caple (1976), 33 Md.App. 413, 365 A.2d 47; Coburn v. State (Tex.Crim.App.1985), 688 S.W.2d 214; see also Lee v. ......
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Vaccaro v. Caple
...would have required the defense to re-try a case already completed. The Court of Appeals had before it the same issue in Lee v. Colson, 277 Md. 599, 356 A.2d 558 (1976): A juror whom counsel claimed had been stricken peremptorily was sworn inadvertently on the jury which was empaneled, serv......
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King v. State Roads Commission of State Highway Administration
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