Vaccaro v. Caple, No. 13

• Court: Court of Special Appeals of Maryland
• Writing for the Court: LISS
• Citation: 33 Md.App. 413,365 A.2d 47
• Parties: Josephine VACCARO et al. v. Lexly W. CAPLE.
• Decision Date: 03 November 1976
• Docket Number: No. 13

Page 413

33 Md.App. 413 365 A.2d 47 Josephine VACCARO et al.
v.
Lexly W. CAPLE. No. 13. Court of Special Appeals of Maryland. Nov. 3, 1976.

[365 A.2d 48] Bayard Z. Hochberg, Baltimore, with whom were Philip S. Marano, and Michael J. Doxzen, Baltimore, on the brief, for appellants.

Robert H. Bouse, Jr., Baltimore, with whom were Frederick G. Savage and Anderson, Coe & King, Baltimore, on the brief, for appellee.

Argued before DAVIDSON, MELVIN and LISS, JJ.

LISS, Judge.

This case might well be called the 'Case of the Resurrected jurors.' The appellant Josephine Vaccaro,

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infant, was a passenger in an automobile which was involved in a collision with a vehicle operated by Lexly W. Caple, appellee. Suit was filed by appellant and her parents, a jury trial was held in the Circuit Court for Carroll County (Weant, J., presiding), and at the conclusion of all the evidence, verdicts were returned in favor of the appellants. Considering the awards to be grossly inadequate, appellants filed within the time allowed a motion for a new trial, alleging that their right to challenge peremptorily prospective jurors had been impaired. The court after a hearing denied the motion, and it is from the refusal of the court to grant a new trial that this appeal was taken.

It is not necessary for us to give a detailed recitation of the facts of the accident or damages sustained, as this appeal raises only a legal issue-whether the trial court erred by denying appellants' motion for a new trial.

The record discloses that when the case was called for trial, counsel for the parties were each provided with a jury list containing thirty names, and that after voir dire, the clerk of court struck a number of [365 A.2d 49] the names by lot. In each instance, lines were clearly marked through the names and addresses of those jurors struck by the clerk. Counsel for the defense also drew a line through the names and addresses of those jurors he wanted to strike peremptorily. Appellants' counsel placed a check mark opposite the names of his peremptory challenges but did not mark through their names and addresses-with the exception of one juror whose name he did mark through and who was actually stricken from the panel. It being the practice in the Carroll County Circuit Court to effectuate peremptory challenges by crossing out the names and addresses of those jurors to be excluded, the court inadvertently did not strike from the panel three of the jurors counsel for appellants had intended to be challenged. The jury was then called by name and seated in the presence of counsel. They were again called by name in the presence of counsel when the clerk took count of the jury. The jurors, including the three intended to be stricken by appellants, were then sworn, and the trial proceeded to conclusion. Counsel for appellants contends

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that he did not discover the error until the day after the verdict was rendered; and it is conceded that neither the court, the clerk, nor opposing counsel had knowledge of the apparent mistake.

The sole issue raised by this appeal-whether the trial court erred by denying appellants' motion for a new trial-has two facets: First, were the appellants deprived of the right to peremptory challenges allowed them by statute and rule of court; and secondly, did the appellants waive their right to the peremptories by failing to object to the composition of the jury until after a verdict was rendered?

There is no disagreement as to the Maryland law governing peremptory challenges. Maryland Code (1974), Courts and Judicial Proceedings Art., § 8-301, provides:

' § 8-301. Peremptory challenges.

(a) Cases involving death, life imprisonment, or 20 years or more.-* * *

(b) Other cases.-In all other cases, each party is permitted four peremptory challenges; all defendants are considered a single party for this purpose.'

Maryland Rule 543 (1974 Repl.Vol.) provides:

'Rule 543. Jury-Selection, Strikes, Challenges, etc. . . . Law

a. Petit Jury.

3. (Peremptory Strikes-Number) Each party may peremptorily strike, without cause, four persons from the lists of twenty provided for in paragraph 1 of section a of this Rule, and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in the action. * * *

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The right to challenge prospective jurors peremptorily has developed through the common law, case law, statute, and rule of court. The historical background of that right was discussed in depth by Judge Moylan of this Court in Spencer v. State, 20 Md.App. 201, 314 A.2d 727 (1974). In the earlier case of Pearson v. State, 15 Md.App. 462, 291 A.2d 167 (1972), Judge Gilbert, now Chief Judge of this Court, explicated the importance of the peremptory challenge as a means of guaranteeing a fair and impartial jury. While most of the cases cited in these opinions refer to criminal matters, there is no difference in the purpose and effect of the peremptory in a civil or a criminal case.

The function of the peremptory challenge is to eliminate extremes of partiality and to assure the parties that the case is decided solely on the basis of the evidence. The Supreme Court in Swain v. [365 A.2d 50] Alabama, 380 U.S. 202, 218, 85 S.Ct 824, 835, 13 L.Ed.2d 759, 771 (1965), discussed its 'raison d'etre':

'. . . peremptories were and are freely used and relied upon in this country, perhaps because juries here are drawn from a greater cross-section of a heterogenous society. The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. See Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011. The denial or impairment of the right is reversible error without a showing of prejudice . . . (citations omitted) . . . '(F)or it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.' Lewis v. United States, supra, at 378, (13 S.Ct. (136) at 139, 36 L.Ed. 1011, 1014).'

However, freedom to exercise the right of peremptory challenge is not absolute; and where, as here, the appellants

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have failed to use due diligence, they will be held to have waived the right. We shall affirm.

The rule is, we are convinced, that when a juror who might otherwise be disqualified for cause is permitted to serve on a jury because of the failure of the aggrieved party to use due diligence in discovering the irregularity, a judgment of that jury will not be disturbed. It seems to us even less justifiable-in such an instance-where the challenge is a peremptory one, which could have been exercised for any arbitrary reason...