State v. McQuesten, 86-436
| Decision Date | 17 March 1989 |
| Docket Number | No. 86-436,86-436 |
| Parties | STATE of Vermont v. Wallace C. McQUESTEN. |
| Court | Vermont Supreme Court |
Philip R. Danielson, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.
Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for defendant-appellant.
Before ALLEN, C.J., PECK, GIBSON and DOOLEY, 1 JJ., and KEYSER, J. (Ret.), Specially Assigned.
KEYSER, Justice (Ret.), Specially Assigned.
Defendant was convicted after a jury trial of driving under the influence of intoxicating liquor. He appeals on several grounds, one of which is that the trial court committed error by refusing to excuse two jurors for cause. We agree and reverse.
During voir dire, the following exchange took place between the prosecutor and one of the prospective jurors:
Later in the voir dire, the defense attorney inquired whether any of the prospective jurors believed it was or should be unlawful to have a drink and then drive so long as one is not "under the influence." Another prospective juror stated that she believed such conduct should be unlawful. The following exchange then took place:
At the subsequent bench conference, the defense attorney moved to excuse both prospective jurors for cause, stating that both had indicated they could not be fair. The trial court denied the motion. The defense then used two of its peremptory challenges to strike the two prospective jurors, and its remaining peremptory challenges on other prospective jurors. Having exhausted its peremptory challenges, the defense was unsuccessful in seeking the removal of an additional juror.
This case is governed by our recent decision in State v. Doleszny, 146 Vt. 621, 508 A.2d 693 (1986). In Doleszny, involving sexual assault on a minor, the trial judge asked a prospective juror during voir dire if the juror could be impartial regarding the testimony of a State's witness. The prospective juror responded:
I certainly could try to be impartial but I'm not saying that I could. It might be that because of my prior knowledge of [the witness] I would weigh it heavily in the favor of what he says. That's a possibility.
Id. at 622, 508 A.2d at 694. The trial court refused to dismiss the prospective juror for cause. Defendant then exhausted his peremptory challenges and sought unsuccessfully to remove another prospective juror. We held that "after the juror questioned his own impartiality, the only alternative was removal." Id. at 623, 508 A.2d at 694; see also Jones v. Shea, 148 Vt. 307, 309, 532 A.2d 571, 573 (1987) () (and cases cited).
Because the defendant in Doleszny had exercised all his peremptory challenges, "prejudice was clearly established." 146 Vt. at 623, 508 A.2d at 694. We stated:
It is reversible error to force a defendant to use his last peremptory challenge to exclude a juror challengeable for cause where the defendant indicates his desire to peremptorily challenge another juror. State v. Holden, 136 Vt. 158, 161, 385 A.2d 1092, 1094 (1978). Even...
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