State v. Berberian

• Decision Date: 20 June 1977
• Docket Number: Nos. 76-388-M,s. 76-388-M
• Parties: STATE v. Aram K. BERBERIAN. P., 76-409-C.A.
• Court: Rhode Island Supreme Court

Page 778

374 A.2d 778

118 R.I. 413

STATE v. Aram K. BERBERIAN.

Nos. 76-388-M.P., 76-409-C.A.

Supreme Court of Rhode Island.

June 20, 1977.

[118 R.I. 425] Julius C. Michaelson, Atty. Gen., Forrest L. Avila, Special Asst. Atty. Gen., for plaintiff-respondent.

Aram K. Berberian, pro se.

OPINION

BEVILACQUA, Chief Justice.

This petition for a writ of habeas corpus is predicated on the petitioner's assertion that his prospective incarceration at the Adult Correctional Institutions is unlawful because the participation by a partially deaf juror on the panel which convicted him denied him the rights guaranteed by the sixth amendment of the United States Constitution and art. I, § 10 of the Rhode Island Constitution. ¹

The petitioner was found guilty of reckless driving in violation of G.L.1956 (1968 Reenactment) § 31-27-4 after a jury trial in Superior Court.

In the course of polling the jury, it appeared that the hearing of one of the jurors was impaired. The trial justice then conducted an examination of this juror to determine whether his hearing was so defective that he could not fully understand the proceedings. Counsel for both sides were permitted to participate. At the conclusion of the examination, petitioner moved to have the case passed, or an alternate juror substituted for the partially deaf juror. The trial justice denied the motion and petitioner appealed his conviction. On appeal, this court was evenly divided on the issue of whether the juror's hearing was impaired to the point that he could not properly discharge his duty. State v. Berberian, 113 R.I. 521, 324 A.2d 330 (1974). ² Accordingly, the decision of the Superior Court was affirmed.

It is the state's contention that the issues raised by the instant petition, having been heard on appeal, are res judicata, and therefore petitioner is barred from relitigating the issue. The state in so arguing misconstrues the effect given to a decision of an evenly divided court and the nature of a petition for habeas corpus. When this court is evenly divided, the judgment or decree of the trial court stands, Spooner v. Powers & Mayer Mfg. Corp., 110 A. 401 (R.I.1920); Di Sandro v. Providence Gas Co., 40 R.I. 551, 102 A. 617 (1918), and there is no authoritative decision of the question of law involved. Wrynn v. Downey, 27 R.I. 454, 63 A. 401 (1906). Furthermore, the doctrine of res judicata is inapplicable to habeas corpus proceedings; the issuance of the writ is within the discretion of the court. 39 C.J.S. Habeas Corpus §§ 10, 17 (1976). See Darr v. Burford, 339 U.S. 200, 204, 214-15, 70 S.Ct. 587, 590, 596, 94 L.Ed. 761, 767, 772-73 (1950); Salinger v. Loisel, 265 U.S. 224, 230-31, 44 S.Ct. 519, 521, 68 L.Ed. 989, 995-96 (1924).

Ordinarily an application for habeas corpus will be entertained only after all other available remedies have been exhausted, and in the instant case, this requirement has been met. Cf. Reynolds v. Langlois, 99 R.I. 555, 209 A.2d 237 (1965) (application for habeas corpus denied where the petitioner intentionally bypassed state procedure by failing to prosecute an appeal); In re Scamporrino, 30 R.I. 587, 76 A. 761 (1910) (petition for habeas corpus denied until after application to criminal court asking for a regulation of the probation officer's conduct). Therefore, since the denial of a constitutional right is alleged and the issue was not decided authoritatively in the prior appeal, this court, acting within its discretion, and consistent with its obligation under the constitutions of this state and of the United States, to preserve and secure the right of every person to due process, will reach the merits of the instant petition.

The state further contends that petitioner's failure to challenge the juror's physical qualifications until after the verdict constituted a waiver of his right to such an objection. It is generally held that a party who knows or by the exercise of reasonable diligence on the voir dire examination should have known of a juror's disqualification waives the right to object thereto by waiting to raise the objection until after the verdict. 47 Am.Jur.2d Jury § 109 (1969). See King v. Leach, 131 F.2d 8 (5th Cir. 1942); Commonwealth v. Brown, 231 Pa.Super. 431, 332 A.2d 828 (1974); Industrial Trust Co. v. Feuer, 57 R.I. 243, 189 A. 42 (1937); Fiske v. Paine, 18 R.I. 632, 28 A. 1026 (1894); Lindsey v. State, 189 Tenn. 355, 225 S.W.2d 533 (1949). However, in the instant case, we find nothing in the record to indicate that petitioner through the exercise of reasonable diligence could have discovered that the juror in question had a hearing impediment. Additionally, in determining that petitioner has not waived his objection even though raised after the verdict, we find the reasoning of the court in Black v. Continental Cas Co., 9 S.W.2d 743, 744 (Tex.Civ.App.1928) persuasive:

"Obviously a juror whose vision or hearing is so defective that he cannot hear material testimony, or see the conduct of the witness on the stand, cannot as an impartial juror pass upon the credibility of the witness or the weight to be given his testimony, nor render a fair and impartial verdict solely on the evidence. And, if said juror's disqualification is not discovered prior to the verdict, through no negligence of the complaining party, it is likewise obvious that injury to his rights may result; and whether the matter of public policy in refusing to consider such disqualification after a verdict has been reached should outweigh an injury done a litigant because of such disqualification may be open to doubt."

Since there appears to have been no negligence on the part of petitioner in failing to discover the juror's hearing impairment prior to the verdict and in view of the substantiality of the rights involved, we find that petitioner did not waive his objection.

Article I, § 10 of the Rhode Island Constitution ³ and the sixth amendment of the United States Constitution guarantee to the criminally accused the right to a trial by jury, that is, " 'a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.' " State v. Pella, 101 R.I. 62, 64, 220 A.2d 226, 228 (1966), citing Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). Fundamental to the right of an "impartial" jury is the requirement that jurors be competent and qualified. "(T)rial by jury necessarily requires a jury which is able to comprehend and intelligently resolve the factual issues submitted to its verdict." Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966). (Coleman, J., concurring in part and dissenting in part). It follows that a juror should be free from physical disabilities that would interfere with the proper discharge of his duties. Commonwealth v. Brown, supra ; 47 Am.Jur.2d Jury § 109 (1969); ABA Project on Standards for Criminal Justice, Standards Relating to Trial by Jury § 2.1(b)(ii) (Approved Draft, 1968).

It is generally held that the issue of whether a physical infirmity, such as deafness, is sufficient to disqualify a juror is a question addressed to the sound discretion of the trial justice, and such decision will not be disturbed except where an abuse of discretion is shown. Lyda v. United States, 321 F.2d 788 (9th Cir. 1963); King v. Leach, supra; Lindsey v. State, supra. While this court has not previously reviewed a case involving the issue of a juror's physical competence, it is well-settled in this jurisdiction that the issue of whether a juror is disqualified due to bias, prejudice or interest is left to the discretion of the trial justice. Industrial Trust Co. v. Feuer, supra; Sansouver v. Glenlyon Dye Works, 28 R.I. 539, 69 A. 545 (1908); Fiske v. Paine, supra; State v. Congdon, 14 R.I. 458 (1884). In Fiske v. Paine, supra, this court rejected a distinction between disqualifications propter defectum, e. g., alienage, nonresidence, or nontaxpaying, and disqualifications propter affectum, e. g., relationship or interest, which impugn the impartiality of a juror. The court stated that all types of juror disqualification should be treated in a similar manner:

"The court should consider whether the right of a party to a fair and impartial trial has been prejudiced, and decide accordingly, whether the alleged disqualification be propter defectum or propter affectum. * * * The decisive test is the fact of a fair trial." Id. at 635-36, 28 A. at 1027.

In the instant case, the trial justice, after examining the juror, decided that although he had a hearing impairment, it was not such as to preclude him from properly discharging his duties as a juror. The petitioner contends that the trial justice, in so concluding, abused his discretion. After carefully reviewing the transcript of the examination of the juror, we agree with petitioner's contention.

During the examination of the juror, he indicated that he had difficulty in hearing. In fact, in a number of instances he openly admitted that he could not hear the questions submitted to him. ⁴ Further, a considerable number of his answers during the examination were not responsive. Questions frequently had to be repeated before the juror could respond appropriately. The juror also acknowledged that he was unable to hear defense counsel when said counsel was not facing him. ⁵

In this case, we find that the record indicates that the juror in question had a hearing impairment sufficient to deny the petitioner's right to a fair, impartial trial and a unanimous verdict. The juror's own statement that he was able to hear all the testimony in the case cannot be considered persuasive, since he would not necessarily be aware of what he could not hear. Thus, since the juror's deafness may have adversely affected his ability to decide the case intelligently, we must grant the petition for habeas corpus in order to insure a fair trial.

The petition for...