State v. Woods

• Citation: 550 S.E.2d 282,345 S.C. 583
• Decision Date: 16 July 2001
• Docket Number: No. 25318.,25318.
• Parties: The STATE, Petitioner, v. Derrick Bernard WOODS, Respondent.
• Court: United States State Supreme Court of South Carolina

345 S.C. 583

550 S.E.2d 282

The STATE, Petitioner, v. Derrick Bernard WOODS, Respondent.

No. 25318.

Supreme Court of South Carolina.

Heard April 3, 2001.

Decided July 16, 2001.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, and Assistant Attorney General Toyya Brawley Gray, all of Columbia; and Solicitor Thomas E. Pope, of York, for petitioner.

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for respondent.

PLEICONES, Justice:

We granted certiorari to review a decision of the Court of Appeals granting respondent a new trial. The Court of Appeals held respondent was entitled to a new trial because a seated juror failed to disclose that she had worked as a volunteer victims' advocate in the prosecuting office. State v. Woods, 338 S.C. 561, 527 S.E.2d 128 (Ct.App.2000). We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In August of 1998 respondent was convicted of possession with intent to distribute (PWID) crack cocaine and PWID within proximity of a park.

After the jury returned its verdict, but before the court imposed sentence, defense counsel moved for a new trial on the basis of after-discovered evidence. The after-discovered evidence consisted of information, made known to respondent after the trial, that a juror ("Juror B") had for three years worked as a volunteer victims' advocate in the solicitor's office which prosecuted the case. The court held an evidentiary hearing to consider the motion. At the hearing, Juror B testified that she had worked as a volunteer victims' advocate in the solicitor's office "off and on for about a good three years" ending in 1998. Juror B added that her job did not entail significant interaction with the attorneys employed in the solicitor's office.

The trial court denied the motion for a new trial, finding respondent had failed to show Juror B intentionally concealed information. The court further found Juror B had not been biased in favor of the State. Respondent appealed. The Court of Appeals, citing State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982), reversed the trial court's denial of respondent's motion for a new trial because "the juror did not justify her failure to disclose" the information sought during voir dire. We granted the State's petition for certiorari to review the Court of Appeals' decision.

During voir dire, the court asked potential jurors the following questions:

Question 1:

Now you can tell me are you friends or casual acquaintances with any of them [i.e., the attorneys involved in the trial] or business associates or social acquaintances with any of them, that would also include having been represented by any of them in the past[?][I]f so please stand.

Question 2:

Ladies and gentlemen, are any of you contributors to or supporters of any organization which has as its primary function the promotion of law enforcement or protection of victims' rights such as MADD, SADD, CAVE, or the like[?] [I]f so please stand.

Several jurors responded affirmatively to the questions above. However, Juror B did not respond to either question. Juror B was subsequently seated as a juror in the case. When Juror B's name was drawn, respondent had one peremptory challenge remaining.

Juror B testified that she did not recall the judge asking Question 2, and that she would have responded had she heard the question. She qualified her response by stating, "it just didn't synchronize if I heard it, but I'm not doubting that it hadn't been said but it just didn't synchronize because I came into court with a clear mind." She testified that she responded affirmatively to a similar question when asked on voir dire at a subsequent trial during the same term of court.

Juror B gave conflicting testimony regarding Question 1. Initially, she admitted hearing the question, but said she did not think it applied to her. She then said she could not recall the question being asked. When respondent's attorney read the question from the transcript, she replied that the question "didn't phase [sic][her]," implying that she heard the question, but chose not to respond.

ISSUE

Did the Court of Appeals err in reversing the trial court's denial of respondent's motion for a new trial based on after-discovered evidence?

ANALYSIS

All criminal defendants have the right to a trial by an impartial jury. U.S. CONST. amends. VI and XIV; S.C. CONST. art. I, § 14. To protect both parties' right to an impartial jury, the trial judge must ask potential jurors whether they are aware of any bias or prejudice against a party. State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998). "Through the judge, parties have a right to question jurors on their voir dire examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge." Gulledge, 277 S.C. at 370, 287 S.E.2d at 490.

When a juror conceals information inquired into during voir dire, a new trial is required only when the court finds the juror intentionally concealed the information, and that the information concealed would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges. Thompson v. O'Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 506 (1986). Where a juror, without justification, fails to disclose a relationship, it may be inferred, nothing to the contrary appearing, that the juror is not impartial. On the other hand, where the failure to disclose is innocent, no such inference may be drawn. State v. Savage, 306 S.C. 5, 409 S.E.2d 809 (Ct.App.1991).

In Kelly, we stated that the first inquiry in the juror disqualification analysis is whether the juror intentionally concealed the information during voir dire. Kelly, 331 S.C. at 146,

502 S.E.2d at 106-07. However, in Kelly we did not precisely define what constitutes an intentional concealment.

We hold that intentional concealment occurs when the question presented to the jury on voir dire is reasonably comprehensible to the average juror and the subject of the inquiry is of such significance that the juror's failure to respond is unreasonable. Unintentional concealment, on the other hand, occurs where the question posed is ambiguous or incomprehensible to the average juror, or where the subject of the inquiry is insignificant or so far removed in time that the juror's failure to respond is reasonable under the circumstances.

Necessarily, whether a juror's failure to respond is intentional is a fact intensive determination which must be made on a case by case basis.

Other jurisdictions have recognized similar distinctions between intentional and unintentional juror concealment. For example, the Missouri Supreme Court distinguished intentional from unintentional concealment as follows:

Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable.

Unintentional nondisclosure exists where, for example, the experience forgotten was insignificant or remote in time, or where the venireman reasonably misunderstands the question posed.

Williams By and Through Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo.1987).

The State argues that because respondent has not shown that he was prejudiced by Juror B's responses, the Court of Appeals' decision was erroneous. We disagree. The test pronounced in Thompson v. O'Rourke, supra,

makes clear that where a juror's response to voir dire amounts to an intentional concealment, the movant need only show that the information concealed would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges. Where the juror's failure to disclose information is "without justification," i.e., intentional, the juror's bias will be inferred. Conversely, where the failure to disclose is innocent, no inference of bias can be drawn. See Savage, 306 S.C. at 8,

409 S.E.2d at 810. See also Doyle v. Kennedy Heating & Service, Inc., 33 S.W.3d 199, 201 (Mo.Ct.App.2000) ("If a juror intentionally withholds material information requested on voir dire, bias and prejudice are inferred from such concealment. ... Only where a juror's intentional nondisclosure does not involve a material issue, or where the nondisclosure is unintentional, should the trial court inquire into prejudice." (Emphasis in original)).

Applying this analysis to the instant case, we find the concealment was intentional. Questions 1 and 2 were reasonably comprehensible and should have elicited a positive response from Juror B. Juror B worked as a volunteer victims' advocate for a period of three years in the solicitor's office which prosecuted the case. There is no question she remembered the experience.

Question 1 unambiguously sought a response from any juror having a business association with any of the attorneys trying the case. Despite her prior three year relationship with the prosecuting attorney's office, Juror B did not respond. Her contention that she did not hear the question when asked, or that if she heard the question, she did not realize it applied to her, cannot excuse her failure to respond.

Similarly, her failure to respond in the affirmative to Question 2 amounted to an intentional concealment. Juror B had for three years performed volunteer work for an organization whose primary function was the protection of victims' rights. She offered inconsistent explanations for her failure to respond, alternately contending that she did not hear the question and that she failed to comprehend its application to...