Schwan v. State
| Decision Date | 02 May 2013 |
| Docket Number | 2012.,No. 246,246 |
| Citation | 65 A.3d 582 |
| Parties | Steven W. SCHWAN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | United States State Supreme Court of Delaware |
OPINION TEXT STARTS HERE
Court Below—Superior Court of the State of Delaware, in and for Kent County, Cr. I.D. No. 1106004050.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Bernard J. O'Donnell, Esquire, Office of the Public Defender, Wilmington, Delaware, for appellant.
John Williams, Esquire, Department of Justice, Dover, Delaware, for appellee.
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
This is the direct appeal of the defendant-appellant, Steven Schwan (“Schwan”), after a Superior Court jury convicted him of two counts of Unlawful Sexual Contact in the Second Degree, and a bench trial resulted in an additional conviction for Unlawful Sexual Conduct by a Sex Offender Against a Child. Schwan raises one argument on appeal: that the trial judge committed reversible error by not excluding, for cause, a juror who was acquainted with a prosecutor, although that same prosecutor was not involved in Schwan's case.
We have concluded that the trial judge erred by failing to exclude the juror, in the absence of a determination that the juror could render a fair and impartial verdict. Because Schwan's Sixth Amendment right to a fair trial by an impartial jury was violated, his convictions must be reversed.
On June 3, 2011, Schwan's daughter invited two minor friends to her house to watch movies. Schwan joined the three girls to watch the movies in his daughter's bedroom. During the movie, Schwan joined the girls on the bed. A.P.,1 the complainant, testified at Schwan's trial that she was wearing only boxer shorts and a camisole when Schwan laid down behind her on the bed. During the movie, Schwan's daughter and the other friend fell asleep, while Schwan and A.P. were still awake. A.P. alleges that Schwan then performed multiple sexual acts on her while she pretended to be asleep.
Schwan was charged by indictment with Rape in the Second Degree,2 Unlawful Sexual Conduct by a Sex Offender Against a Child,3 Rape in the Fourth Degree,4 and two counts of Providing Alcohol to a Minor. 5 The Unlawful Sexual Conduct by a Sex Offender Against a Child charge was severed before trial for a bench trial based on the evidence presented at the jury trial.
At trial, all three minor females testified. The jury acquitted Schwan of Rape in the Second Degree, Rape in the Fourth Degree, and both counts of Providing Alcohol to a Minor. The jury did, however, find Schwan guilty of two counts of the lesser included crime of Unlawful Sexual Contact in the Second Degree.6 Additionally, based on the evidence presented at the jury trial, the trial judge found Schwan guilty of the severed charge of Unlawful Sexual Conduct by a Sex Offender Against a Child.
During the voir dire of the petit jury, the trial judge asked the now-standard question, “Do you know the attorneys in this case, or any other attorney or employee in the offices of the Attorney General or defense counsel?” (emphasis added). Eventual Juror 11, the juror in question in this appeal, did not respond that she knew a non-trial prosecutor. Accordingly, defense counsel had no reason to move to exclude Juror 11 at that time she was seated.
Without using his full complement of peremptory challenges allowable by court rule,7 defense counsel indicated that he was content with the jury panel. That same day, the jury was sworn and sent home. Schwan's trial was to start the next morning.
The following day, before the beginning of any proceedings, the trial prosecutor notified the judge about a potential conflict with the person seated as Juror 11. Through other members in the Attorney General's office, the trial prosecutor discovered that Juror 11 had a connection to another prosecutor who was not involved with Schwan's trial (the “non-trial prosecutor”). The trial prosecutor also learned that Juror 11 was specifically told by the non-trial prosecutor, sometime before being selected for the jury, that if she [Juror 11] was selected to serve on a jury, that she should reveal her connection to the non-trial prosecutor to the court during voir dire.
The trial judge decided to make inquiries of Juror 11 in the presence of counsel. Juror 11 was individually brought into the courtroom—still prior to any trial proceedings—to ascertain her connection to the non-trial prosecutor. The trial judge asked Juror 11 if she knew any of the attorneys in Schwan's case, or any attorneys in the Office of the Attorney General. This time, Juror 11 answered affirmatively. The trial judge suggested, and Juror 11 agreed, that she had misinterpreted the question during voir dire. Juror 11 said she thought the initial question during voir dire related only to attorneys involved in Schwan's case.
Juror 11 stated that she knew the non-trial prosecutor because Juror 11 was the director of the childcare center where the non-trial prosecutor takes her children. Thus, the juror and the non-trial prosecutor were in an ongoing business relationship. The trial judge then specifically asked Juror 11 if she had ever spoken to the non-trial prosecutor about being called for jury duty. Juror 11 denied ever having spoken to the non-trial prosecutor about that topic. Juror 11 was then excused from the courtroom.
Defense counsel made its first application to have Juror 11 removed. In addition to the connection to the non-trial prosecutor, defense counsel expressed concern that Juror 11 was untruthful when specifically asked about prior conversations with the non-trial prosecutor about being called for jury duty. Defense counsel stated, “it's a little troubling to me that a pretty clear jury voir dire question was read, and it appears she had been instructed beforehand to come forward, and she didn't, and upon questioning by the [c]ourt, she denied being instructed to do that.” In denying defense counsel's application, the trial judge stated that “the [c]ourt does not believe that there's a basis for cause to remove the juror, so the application is denied.”
Following the trial judge's refusal to remove Juror 11 for cause, defense counsel suggested, “[P]erhaps it might be appropriateto ask [the non-trial prosecutor] if she remembers having a conversation with that juror or with someone who works at the daycare facility about that.” The trial judge agreed to ask the non-trial prosecutor if she had spoken to Juror 11 about serving on a jury. Before the non-trial prosecutor was located, defense counsel renewed the application to have Juror 11 removed. Defense counsel suggested that “[t]he defense still has peremptory challenges left if the [c]ourt will be willing to consider one of those being used to remove this juror and replace with an alternate.” The trial prosecutor responded, “I don't think that's proper.” The trial judge agreed:
The non-trial prosecutor was then located and brought into the courtroom. She stated that she had spoken to Juror 11 more than a week before, shortly after Juror 11 received the notification about being summoned for jury duty. At that time, the non-trial prosecutor told Juror 11 that
After the non-trial prosecutor was excused, the trial prosecutor responded to the trial judge's inquiry on whether this “clear[ed] the air a little bit.” The trial prosecutor said: Defense counsel then made his third application to have Juror 11 removed, not only on grounds of potential bias, but also because Juror 11 had not been forthcoming about her prior conversations with the non-trial prosecutor. Defense counsel argued:
Well, Your Honor, I don't think the issue is whether the juror is well-acquainted with [the non-trial prosecutor] or not. I think it's pretty clear she is not. The issue is whether the juror was told/informed by [the non-trial prosecutor] that when you're called for jury duty, you need to tell the [c]ourt that you know me. She was told that. I happen to believe [the non-trial prosecutor]'s recollection of the events. The juror plainly stated that never happened. That's an issue for the defense. Defense renews the application for removal.
The trial judge responded that
Under the Sixth Amendment of the United States Constitution, 8 all defendants have a fundamental right to a fair trial by an impartial jury.9 The impartiality of jurors is essential to the proper functioning of the jury.10 We have previously held that “if only one juror is improperly influenced, a defendant in a criminalcase is denied his Sixth Amendment right to an impartial jury.” 11 Juror impartiality must be maintained not only in the interest of fairness to the accused, but also to assure the overall integrity of the judicial process. 12 Furthermore, “jury bias, either actual or apparent, undermines society's confidence in its judicial system.” 13
“ Voir dire is the historic method used to identify bias in prospective jurors and is critical to protecting a defendant's right to a...
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