State v. Doughty

• Decision Date: 17 December 1986
• Docket Number: No. 85-546,85-546
• Citation: 397 N.W.2d 503
• Parties: STATE of Iowa, Appellee, v. Ralph Laverne DOUGHTY, Appellant.
• Court: Iowa Supreme Court

Page 503

397 N.W.2d 503

STATE of Iowa, Appellee, v. Ralph Laverne DOUGHTY, Appellant.

No. 85-546.

Supreme Court of Iowa.

Dec. 17, 1986.

Rehearing Denied Jan. 14, 1987.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., and William E. Davis, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, SCHULTZ, LAVORATO, and NEUMAN, JJ.

REYNOLDSON, Chief Justice.

An instructional error required us to reverse a prior judgment convicting defendant of first-degree kidnapping, a crime involving sexual abuse of a five-year-old boy. State v. Doughty, 359 N.W.2d 439 (Iowa 1984). Doughty now appeals his second conviction for the same offense following retrial, claiming an irregularity in the jury composition. We affirm in part, reverse in part, and remand with directions.

The controlling facts are undisputed. Doughty's second trial commenced February 25, 1985. Jury selection took most of the day and resulted in a jury of seven men and five women. Two men were selected as alternates. The clerk then called the roll of the fourteen persons to be sworn. One of those called was Barbara Dichiser. For some unexplained reason Dichiser did not respond to the call. Instead, Richard Frahm, whom defendant had peremptorily struck, took a place in the jury box, making a jury of eight men and four women. Without objection from defendant, the jurors and alternates were sworn.

Closing arguments were made February 28, 1985, and the case was submitted to the jury at 11:10 a.m. The record does not disclose whether or not a lunch period was taken. However, it does show the jury returned a signed verdict at 1:42 p.m. on the same day, finding defendant guilty of kidnapping in the first degree. When the jury was polled, it was discovered Frahm rather than Dichiser had served on the jury.

After the jury again was sequestered, defense counsel moved for a mistrial. In response, the prosecutor argued defendant waived any error when he failed to raise an objection before or at the time the jury was sworn.

Trial court denied defendant's motion for mistrial, but not on the basis of waiver. Rather, trial court refused to accept the jury's original verdict and, after examining the first alternate juror to determine whether he could still serve as an appropriate juror, replaced Frahm with the alternate and instructed the jury to begin its deliberations anew. After deliberating an hour, the reconstituted jury again returned a guilty verdict. Trial court entered judgment sentencing defendant to life imprisonment and he has appealed.

I. Defendant mounts a two-pronged attack on his conviction. He asserts a verdict joined in by a juror whom he had peremptorily struck was so inherently prejudicial trial court should have granted his mistrial motion. Defendant next contends that in any event trial court erred in placing an alternate on the jury "after the jury had retired to deliberate and had returned a verdict."

The State responds that defendant's failure to take even minimal steps to insure that persons whom he struck from the jury panel were properly removed should result in a waiver of his right to object to the jury's composition after an adverse verdict. The State further contends the court's resubmission of the case was not error, but nonetheless any error in this regard was harmless beyond a reasonable doubt.

We need not consider defendant's second ground for reversal or the State's response because we find defendant is precluded from asserting any error with respect to the first verdict. Further, we hold trial court should have received it.

II. The record discloses a computer-printed jury panel list was used for the second trial. It contained pertinent information for use of the parties and counsel. Barbara Lillian Dichiser, age forty-six, was shown to be a "housewife," and her spouse a sales manager. Richard Frahm, age seventy-seven, was shown to be a farmer, and his spouse a "housewife." The sheet prepared for the parties to exercise their peremptory strikes reveals the name of Barbara Dichiser to be handwritten, following the printed but stricken name of another juror who was excused, and extending into the space reserved for the parties to exercise their strikes. The record is clear that Dichiser's name was included among the jurors selected and was called to be sworn by the clerk, who "stumbled" over the pronunciation.

Nonetheless, although confronted by a jury with four rather than five women, neither defense counsel nor the defendant, who was present and raised several complaints and objections during trial, challenged the jury as constituted, or any of its members. Although trial court later observed that none of the parties was conscious of the juror substitution, defense counsel during in-chamber discussions conceded he had the responsibility to "watch out for" the persons he struck. His position was that because he did not know a juror he struck was in the jury box and being sworn, he could not have waived any error in that regard.

During the two days after the jury was sworn, while opening statements were given, evidence submitted, and closing arguments made, defense counsel and defendant had a continuous opportunity to observe the jury and call any potential irregularity to the court's attention. Had any objection to Frahm been lodged before submission of the case to the jury, one of the alternate jurors could have been substituted. Iowa R.Crim.P. 17(15) ("Alternate jurors shall ... replace any juror who ... is disqualified ... before the jury retires....").

In this jurisdiction "known objections, or those which may be ascertained, are waived if no challenge is made before the jury is sworn." State v. Cuevas, 288 N.W.2d 525, 534 (Iowa 1980) (quoting State v. Grove, 171 N.W.2d 519, 520 (Iowa 1969) (emphasis added)); see also Turner v. Jones, 215 N.W.2d 289, 291 (Iowa 1974). In Grove, five members of a prior jury in a criminal case against the defendant, in which the charge arose out of the same events, were left on the jury in the trial of the related offense. Although the same counsel defended in both trials, he made no challenge to any of these jurors until his motion for new trial. Upon appeal following denial of his motion, we articulated the above-quoted waiver rule, and further noted:

Defendant now asks us to redeem him from his failure to exercise a known right at a time when relief, if proper, would have been available to him. We cannot do so; nor under these circumstances should we.

171 N.W.2d at 520.

In the case before us, defendant knew he had a right to object to the presence on the jury of a person he had peremptorily struck. This relief was available to him until the case was submitted to the jury. We are not justified in retrieving his lost opportunity at this point, especially where he has made no attempt to show actual prejudice resulted from Frahm's jury participation.

Nor do we intend to dissect these events to determine whether defendant's failure to make a timely jury challenge neatly squares with our law of waiver, or of estoppel, in civil litigation. It is sufficient to note this situation falls within that category of cases in which this court, applying statute, rule, or case law, has held an accused has attempted to assert his or her rights too late. See, e.g., State v. Sheets, 291 N.W.2d 35, 36-37 (Iowa 1980) (Defendant waived objection to county attorney's qualification to sign information by first raising this ground in motion for new trial.); State v. Winquist, 247 N.W.2d 256, 259 (Iowa 1976) (Qualification of person withdrawing blood for testing could not first be...