State v. Lambert

• Decision Date: 28 March 2003
• Docket Number: No. 01-390.,01-390.
• Citation: 830 A.2d 9
• Parties: STATE of Vermont v. Felicia LAMBERT.
• Court: Vermont Supreme Court

830 A.2d 9

STATE of Vermont v. Felicia LAMBERT.

No. 01-390.

Supreme Court of Vermont.

March 28, 2003.

Motion for Reargument Denied April 30, 2003.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

¶ 1. Defendant Felicia Lambert appeals from a judgment of conviction, based on a jury verdict, of domestic assault and cruelty to a child under the age of ten. She contends the trial court erroneously: (1) denied her right to a fair and impartial jury by improperly dismissing one of the jurors after impanelment; (2) failed to instruct the jury on all of the elements of the crime of cruelty to a child; and (3) imposed a sentence with no minimum term. We affirm the judgment of conviction, reverse the sentence for cruelty to a child, and remand for resentencing.

¶ 2. Defendant was charged with one count of aggravated domestic assault, in violation of 13 V.S.A. § 1043, and one count of cruelty to a child under ten years of age, in violation of 13 V.S.A. § 1304. The charges stemmed from an incident involving her son. Additional facts will be stated where pertinent to the claims on appeal.

¶ 3. Jury selection was held, and fourteen jurors were selected, two to serve as alternates. On the first day of the trial, before the jury was sworn, one juror was excused at her own request and without objection because her daughter had been involved in a serious accident. The State then requested that an additional juror be struck because of facts that had been brought to the prosecutor's attention following jury selection. Specifically, a local reporter had told the prosecutor that this particular juror was an officer of a church that ran a day care center. The reporter stated that the church's day care provider had recently been accused of pinching some of the children in her care, that the juror had attended the day care provider's sentencing hearing on another charge of child abuse with respect to a foster child in her care, and that the juror had expressed surprise to the reporter that what the day care provider had done was considered a crime.

¶ 4. The trial judge called the juror into the courtroom and questioned him about the allegations. The juror acknowledged attending the sentencing hearing, but denied knowing the defendant in the case. He explained that he had attended only out of curiosity because he had been called for jury duty in a child abuse case. He acknowledged that he had talked with the reporter, but recalled that he had expressed surprise only that the media was interested in the case. When asked whether he understood that child abuse is a crime, he responded, "Oh, absolutely." When asked whether he "support[ed]" child abuse being a crime, the juror appeared to construe the question as pertaining to a particular case, responding that his opinion would depend on the evidence. When asked whether he supported the sentencing in the case that he had observed, he responded that he could not answer because he knew nothing about the case. Defense counsel declined the court's offer to question the juror, but opposed the State's request that he be excused.

¶ 5. The court dismissed the juror, explaining that the decision was based on a concern the juror had "formed some opinions" and had not previously disclosed his attendance at the sentencing hearing, which would have afforded the State the opportunity to seek dismissal for cause, or to exercise a peremptory challenge. No additional jurors were selected, so the trial proceeded through to verdict with the twelve remaining jurors.

¶ 6. At the close of evidence, the trial court instructed the jury on the charged crimes, including instructions on accomplice liability, attempt, and any lesser included offenses. The court also provided the jury with a written copy of the instructions for reference during deliberations. Defendant made no objection following the instructions. The jury found defendant guilty of domestic assault and cruelty to a child. Following a contested sentencing hearing, the court sentenced defendant to serve twenty-four months on the charge of cruelty to a child, and one to twelve months on the charge of domestic assault, to be served consecutively. This appeal followed.

¶ 7. Defendant first contends the trial court committed reversible error by allowing the State to challenge a juror after the jury had been impaneled and granting the challenge on inadequate grounds, thereby depriving her of the right to a fair and impartial jury by the particular tribunal she had selected. See State v. Villeneuve, 155 Vt. 360, 363, 584 A.2d 1123, 1125 (1990) (recognizing defendant's "valued right to have his trial completed by a particular tribunal" once jeopardy attaches) (internal quotation marks and citations omitted). The State responds that dismissal of the juror was in, effect, a peremptory challenge by the State, which it argues may be exercised at any time prior to the jury being sworn.

¶ 8. We need not reach the merits of defendant's argument. We will not reverse a criminal conviction for an error we find to be harmless. See V.R.Cr.P. 52(a); State v. Kinney, 171 Vt. 239, 244, 762 A.2d 833, 838 (2000). In this case, defendant suffered no prejudice from the dismissal of the juror.

¶ 9. The court acted under its power to replace jurors who "become or are found to be unable or disqualified to perform their duties." V.R.Cr.P. 24(d); see also Villeneuve, 155 Vt. at 363, 584 A.2d at 1125 (court may remove a juror in the course of trial in "proper circumstances"); State v. Calloway, 157 Vt. 217, 220, 596 A.2d 368, 371 (1991) (concluding that "the court has the power on its own to excuse persons drawn . . ., and it is an area of trial court discretion aimed at giving both sides a fair trial"). There is no question that having been alerted to questions about the juror's impartiality, the court was authorized to explore and determine the juror's competence to serve on the jury.

¶ 10. Thus, the only possible error is that the court acted without adequate grounds. We do not believe this error, if any, would be sufficient for us to reverse the conviction. As we explained in Calloway:

defendant does not have a right to any specific juror; his right is to a fair and impartial jury. Absent some showing of prejudice, we would not reverse a criminal conviction merely because potential jurors were improperly excused.

157 Vt. at 220-21, 596 A.2d at 371 (internal citations omitted). That defendant here suffered no prejudice from the juror's dismissal — even if erroneous — is readily apparent. Defendant had ample opportunity to voir dire the alternate who replaced the dismissed juror, and plainly determined that the alternate was acceptable. See V.R.Cr.P. 24(d) (alternate jurors "shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges ... as the regular jurors"). Absent any claim or showing of impartiality on the part of the alternate, there is no basis to find that defendant was deprived of a fair and impartial jury. See United States v. Agramonte, 980 F.2d 847, 850 (2d Cir.1992) (although court dismissed juror during trial and appointed alternate without holding requisite inquiry, reversible error cannot be found absent assertion that "the alternate juror who completed the trial was not impartial"); Strickland v. State, 74 Ark. App. 206, 46 S.W.3d 554, 557 (2001) (appellant's failure to allege or demonstrate bias on part of alternate who replaced juror removed by trial court after jury was impaneled and sworn precluded reversal of judgment); Dailey v. State, 828 So.2d 340, 343-44 (Ala.2001) (trial court's error in granting state's challenge for cause is harmless where the jury that heard the case was impartial); Wagner v. State, 253 Ga.App. 874, 560 S.E.2d 754, 760 (2002) (assuming that trial court wrongfully dismissed prospective juror, "the error affords no ground for appeal if, in the end, [the defendant's] case was heard by a competent and unbiased jury") (internal citation omitted); State v. Santana, 135 Idaho 58, 14 P.3d 378, 384 (2000) (although trial court erred in dismissing juror after jury was empaneled and appointing alternate, error was harmless absent claim and showing that jury which heard case was biased). Defendant here has made no such claim or showing.

¶ 11. We emphasize that this was not a case in which an error with respect to the grant or denial of a challenge for cause led to a discrepancy in the availability of peremptory challenges. See State v. Doleszny, 146 Vt. 621, 623, 508 A.2d 693, 694 (1986) (reversible error if court improperly denies defense challenge for cause and defense uses a peremptory challenge to remove this juror, thereafter uses up all peremptory challenges, and then seeks unsuccessfully to challenge another juror); see also State v. McQuesten, 151 Vt. 267, 269-70, 559 A.2d 685, 686 (1989) (same). We have held that this kind of error cannot be considered harmless. See State v. Santelli, 159 Vt. 442, 445-47, 621 A.2d 222, 224-25 (1992). In this case, the prosecution had not used up its peremptory challenges and did not gain a new juror who the defense could not challenge. Thus, we distinguish this case from People v. Lefebre, 5 P.3d 295 (Colo.2000), in which the court's erroneous decision to remove a juror for cause "in effect granted the prosecution an additional peremptory challenge," id. at 303, and was found "inherently prejudicial because it allowed the prosecution an unfair tactical advantage in shaping a jury biased in its favor." Id. at 308. Any error here did not result in a tactical advantage for the State. Accordingly, any error in dismissing the juror was harmless and does not require reversal of the...